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WOMAN’S  RIGHTS 


UNDER  THE  L A AY 


Ett  STfjtee  lectures, 

DELIVERED  IN  BOSTON,  JANUARY,  1861, 


BY 

CAROLINE  H.  DALL, 

AUTHOR  OF  “WOMAN’S  RIGHT  TO  LABOR,”  “HISTORICAL  PICTURES 
RETOUCHED,”  &C.,  &C. 


“ Every  leaf,  we  have  seen,  connects  its  work  with  the  entire  and 
accumulated  result  of  the  work  of  its  predecessors.  Dying,  it  leaves 
its  own  small  but  well-labored  thread ; adding  — if  imperceptibly,  yet 
essentially  — to  the  strength,  from  root  to  crest,  of  the  trunk  on 
which  it  has  lived,  and  fitting  that  trunk  for  better  service  to  the 
next  year’s  foliage.”  — John  Ruskin. 


BOSTON: 

WALKER,  WISE,  AND  COMPANY, 

245,  Washington  Street. 

1862. 


33 

bi 


Entered,  according  to  Act  of  Congress,  in  the  year  1861, 

BY  WALKER,  WISE,  AND  CO. 

In  the  Clerk’s  Office  of  the  District  Court  of  the  District  of 
Massachusetts. 


BOSTON: 

PRINTED  BY  JOHN  WILSON  AND  SON, 
22,  School  Street. 


Co  tfje  ifriEntss 

OF 

forsaken  women  throughout  the  world 

I ©create  tijis  ISooft, 

because  the  lives  of  such  women  are  the 
legitimate  result  of  the  spirit 
OF  THE  LAW. 


211284 


“ Kind  gentlemen,  your  pains 
Are  registered  where  every  day  I turn 
The  leaf  to  read  them.” 

Macbeth. 


Some  reasons  of  this  double  coronation 
I have  possessed  you  with,  and  think  them  strong.” 

“ Why  do  you  bend  such  solemn  brows  on  me  7 
Have  I commandment  on  the  pulse  of  life  ? ” 

King  John. 


“ According  to  the  fair  play  of  the  world, 

Let  me  have  audience.  I am  sent  to  speak  ” 

King  John. 

. . . . “ Let  this  be  copied  out, 

And  keep  it  safe  for  our  remembrance. 

Return  the  precedent  to  these  lords  again.” 


King  John. 


PREFACE. 


There  seems,  at  first  sight,  a certain  presumption 
in  offering  to  an  American  public,  at  this  moment, 
any  book  which  does  not  treat  of  the  great  interests 
which  convulse  and  perplex  the  United  States.  But 
experience  has  shown,  that  neither  the  individual 
nor  the  national  mind  can  remain  continually  upon 
the  rack ; and  both  author  and  publisher  have 
thought  that  a book  upon  a serious  subject,  popu- 
lar in  form  and  low  in  price,  would  find,  perhaps, 
a more  hearty  welcome,  under  present  circum- 
stances, than  in  those  prosperous  days,  when  ro- 
mances and  poems,  travels  and  biographies,  are 
scattered  over  every  table  by  the  score. 

“Woman’s  Right  to  Labor”  owed  its  warm  wel- 
come, not  to  the  power  or  skill  of  its  author,  but  to 
the  impatient  interest  of  philanthropists  in  every 
thing  relating  to  that  subject.  It  remains  to  be 
seen,  whether  as  large  a portion  of  the  public  and 
the  press  are  prepared  to  treat  with  candid  consi- 
deration the  subject  of  the  present  essays. 


VI 


PREFACE. 


Both  these  volumes  have  been  given  to  the  world 
in  their  present  detached  form,  that  they  may  re- 
ceive the  benefit  of  general  criticism ; that  errors, 
inaccuracies,  or  misapprehensions,  maybe  perceived 
and  rectified  before  they  take  a permanent  position 
as  part  of  a larger  work.  All  criticism,  therefore, 
which  is  honestly  intended , will  be  received  with 
patience  and  gratitude  ; but  a great  deal  falls  to  the 
lot  of  every  author,  which  cannot  come  under  this 
head. 

If  we  are  told  that  a “ wider  acquaintance  with 
the  history”  of  a certain  era  will  modify  our  views, 
it  is  natural  to  expect  that  an  honest  critic  will 
show  where  the  acquaintance  fails,  and  how  the 
views  should  be  modified.  When  we  are  told  that 
certain  scientific  illustrations,  “ though  true  in  the 
main,  are  not  accurate  in  detail,”  we  may  reasona- 
bly hope  to  see  at  least  one  error  pointed  out. 
When  neither  of  these  things  is  done,  we  sweep 
such  remarks  aside,  as  alike  unprofitable  to  us  and 
our  readers. 

A wide  and  generous  sympathy  in  my  aims  has 
given  me,  thus  far,  all  that  I could  desire  of  encou- 
ragement and  appreciation  ; and  this  appreciation 
has  come,  in  several  instances,  from  a u household 
of  faith  ” far  removed  from  my  own,  and  has  been 
mingled  in  such  cases  with  an  outspoken  regret, 
that  one  who  u wrote  so  well,  and  felt  so  warmly,” 


PREFACE. 


Vll 


should  not  acknowledge  on  her  pages  the  debt  wo- 
man owes  to  Christianity,  and  unfurl  an  evangelical 
banner  above  a Clirist-like  work.  Because  such 
friends  have  spoken  tenderly,  I answer  them  re- 
spectfully ; because  I never  saw  any  church-door  so 
narrow  that  I could  not  pass  through  it,  nor  so  wide 
that  it  would  open  to  all  God’s  glory,  I answer 
them  without  fear. 

And,  first,  I believe  in  God,  as  the  tender  Father 
of  all ; as  one  who  cares  for  the  least  of  his  children, 
and  does  not  turn  from  the  greatest ; as  one  whose 
eye  marks  the  smallest  inequalities  of  happiness  or 
condition,  and  holds  them  in  a memory  which  does 
not  fail.  I believe  in  Christ,  as  his  authorized  and 
anointed  Teacher,  come  especially  to  reveal  the 
fulness  of  God’s  love  through  his  own  life  of 
practical  good-will.  I do  not  expect  him  to  be 
superseded  or  set  aside  ; and  I do  expect,  that  in 
proportion  as  men  grow  wiser,  humbler,  and  sweeter, 
their  eyes  will  open  only  the  more  widely  to  the 
great  miracle  of  his  spotless  life,  to  the  heavenly 
nature  of  his  so  simple  teachings.  And,  next,  I 
believe  in  my  own  work,  — tha^ elevation  oL wo- 
man through  education,  which  is  development ; 
through  labor,  which  is  salvation  ; through  legal 
rights,  which  are  only  freedom  to  develop  and  save, 
— as  part  of  the  mission  of  Jesus  on  the  earth, 
authorized  by  him,  inspired  of  God,  and  sure  of 


Vlll 


PREFACE. 


fulfilment  as  any  portion  of  his  law.  If  at  any 
time  I have  lost  sight  of  this  in  expression,  it  is 
because  I have  thought  it  impossible  that  the  pur- 
pose and  character  of  my  work  should  be  mistaken. 
I am  a slow  and  patient  worker,  — patient,  be- 
cause one  may  well  be  patient,  if  God  can ; and 
therefore  no  disappointment,  no  lack  of  apprecia- 
tion, could  sour  or  disturb  me. 

If  I have  justified  the  publication  of  this  essay 
at  the  present  moment,  it  may  be  thought  that  I 
shall  not  be  able  to  justify  the  principal  presump- 
tion ; namely,  that  of  a woman  who  undertakes  to 
write  upon  law. 

Such  a treatise  as  this  would  be  valueless,  in  my 
eyes,  if  it  were  written  by  a man.  It  is  a woman’s 
judgment  in  matters  that  concern  women  that  the 
world  demands,  before  any  radical  change  can  be 
made.  To  understand  the  laws  under  which  I 
must  live,  no  recondite  learning,  no  broad  scholar- 
ship, no  professional  study,  can  be  fitly  required. 
Common  intelligence  and  common  sense  are  all 
that  society  has  any  right  to  claim  of  me.  Be- 
cause most  women  shrink  from  criticizing  this  law, 
I have  criticized  it. 

Very  recently,  the  u London  Quarterly”  said,  in 
speaking  of  the  republication  of  John  Austin’s 
work,  that  “ English  jurisprudence  would  be  indebt- 
ed for  one  of  its  highest  aids  to  the  reverential  affec- 


PREFACE. 


IX 


tion  of  a wife,  and  the  patient  industry  of  a refined 
and  intelligent  woman  ; ” and  Mrs.  Austin  defends 
her  undertaking  on  this  very  ground,  — that,  if  she 
had  not  superintended  the  work,  no  one  else  would . 
If  John  Austin’s  firm  and  penetrating  intellect 
could  not  hold  a score  of  persons  about  his  lec- 
turer’s desk,  and  found  its  fit  appreciation  only  in 
the  grave,  a conscientious  woman  need  not  shrink 
from  any  branch  of  his  great  subject,  only  because 
her  audience  will  be  small. 

The  words  of  John  Ruskin,  printed  on  my  title- 
page,  will  show,  as  I hope,  the  modesty  of  my  aim, 
and  the  conscientious  steadfastness  of  my  purpose. 
As  the  leaf  is  to  the  tree,  so  is  the  individual  to 
society.  Tear  away  a single  leaf  from  the  tower- 
ing crest,  and  the  trunk  does  not  seem  to  suffer  : 
nevertheless,  one  small  thread  withers,  one  channel 
dries  up,  one  source  of  beauty  and  use  fails ; and, 
from  that  moment,  a certain  sidewise  tendency 
marks  the  growth. 

To  compact  carefully  one  u well-labored  thread  ” 
is  all  that  I have  sought  to  do,  — to  write  a little 
book,  that  women  might  be  won  to  read,  as  con- 
scientiously as  if  it  were  a heavy  tome,  to  be  end- 
lessly consulted  by  the  bench. 

In  writing  these  three  lectures,  I feel  quite  sure 
that  I must  have  made  use  of  many  significant  ex- 
pressions borrowed  from  those  who  have  broken 


X 


PREFACE. 


the  way  for  me.  For  many  years  an  extempora- 
neous lecturer  on  this  and'  kindred  topics,  certain 
modes  of  expression  have  been  so  wrought  into  the 
fabric  of  my  thought,  that  I do  not  know  where  to 
put  my  quotation-marks.  To  Mrs.  Hugo  Reed,  for 
instance,  I know  I must  be  under  great  obligations  ; 
and  I can  only  hope,  that  she  will  trust  me  with 
her  thoughts  and  words  as  generously  as  I desire 
to  trust  all  my  readers  with  mine.  It  is  little  mat- 
ter who  does  the  work,  so  that  it  be  done  ; but  I 
owe  to  one  author,  in  particular,  something  like  an 
explanation. 

A few  days  before  the  third  of  these  lectures  was 
delivered  in  Boston  (that  is,  before  Jan.  23, 1861), 
a gentleman  from  Paris  brought  me  from  Madame 
d’Hericourt  a book  called  “ La  Femme  Affranchie,” 
an  answer  to  Michelet,  Proudhon,  Girardin,  and 
Comte,  which  its  author  kindly  desired  I should 
translate  for  the  American  market.  Unable  to 
comply  with  her  request,  some  weeks  elapsed  be- 
fore I opened  the  book.  I was  struck  with  the 
energy,  self-possession,  and  rapidity  with  which 
she  seized  the  various  points  of  the  subject,  with 
the  thoroughness  of  her  assault,  and  the  temper  of 
her  argument.  I did  not  sympathize  in  all  her 
methods  or  conclusions  ; but  I was  interested  to  ob- 
serve, that,  in  what  I had  then  written  and  publicly 
spoken  of  the  relations  between  suffrage  and  hu- 


PREFACE. 


XI 


manity,  I had  in  several  instances  used  her  very 
words,  or  she  had  used  mine.  I did  not  alter  my 
manuscript ; but,  with  better  times,  we  may  hope 
for  a translation  of  her  spirited  volumes,  and  the 
public  will  then  do  justice  to  her  precedence. 

I have  been  anxious  to  have  positive  proof  of 
my  conjecture  in  regard  to  the  authorship  of  the 
u Lawe’s  Resolution  of  the  Rights  of  Women;” 
but  persevering  endeavors  in  England,  in  several 
directions,  have  only  left  the  matter  as  it  stands  in 
the  text.  It  would  be  very  interesting  to  know 
something  of  the  private  history  of  the  man  who 
wrote  that  book. 

In  the  first  of  the  following  lectures,  I have  ven- 
tured a rhetorical  allusion  to  the  blue -laws  of 
Connecticut.  Since  it  went  to  press,  I have  seen  it 
stated  on  high  authority,  that  any  American  writer 
who  should  u profess  to  believe  in  the  existence  of 
the  blue-laws  of  New  Haven  would  simply  proclaim 
himself  a dunce,”  and  the  “ Saturday  Review” 
handled  without  gloves  for  taking  this  existence  for 
granted. 

I never  supposed  that  the  term  u blue  ” applied 
to  the  color  of  the  paper  on  which  such  laws  were 
printed,  any  more  than  I supposed  “ blue  Presby- 
terianism ” referred  to  the  color  of  the  presbyters’ 
gowns.  I supposed  it  was  the  outgrowth  of  a 
popular  sarcasm,  descriptive  not  of  a “ veritable 


Xll 


PREFACE. 


code,”  nor  of  a u practical  code  unpublished,”  but 
of  such  portions  of  the  general  code  as  were  repug- 
nant to  common  sense  and  the  genial  nature  of 
man.  This  I still  think  will  be  found  to  be  the 
case  ; and  it  is  certainly  to  Connecticut  divines  and 
Connecticut  newspapers  that  we  owe  the  popular 
impression. 

It  was  in  the  forty-sixth  year  of  the  independ- 
ence of  the  United  States  that  S.  Andrus  and  Co. 
of  Hartford  published  a volume  purporting  to  be 
a compendium  of  early  judicial  proceedings  in  Con- 
necticut, and  especially  of  that  portion  of  the  pro- 
ceedings of  the  Colony  of  New  Haven  commonly 
called  the  “ blue -laws.”  Charles  A.  Ingersoll, 
Esq.,  testified  to  the  correctness  of  these  copies  of 
the  ancient  record. 

As  I quote  this  title  wholly  from  memory,  I am 
unable  to  say  whether  the  colony  ever  fined  a bishop 
for  kissing  his  own  wife  on  Sunday ; but  I have 
read  more  than  once  of  such  fines  ; and,  if  no  laws 
remain  unrepealed  on  the  Connecticut  statute-book 
quite  as  absurd  in  their  spirit  and  general  tendency, 
there  are  many  on  those  of  Massachusetts  and  New 
Hampshire  : so  I shall  let  my  rhetorical  flourish 
stand. 

To  my  English  friends,  to  Mr.  Herndon  of  Illi- 
nois, Mr.  Higginson,  and  Samuel  F.  Haven,  Esq., 
of  Worcester,  I owe  my  usual  acknowledgments  for 


PREFACE. 


Xlll 


books  lent,  and  service  proffered,  with  a generosity 
and  graceful  readiness  cheering  to  remember. 

Nor  will  I omit,  in  what  may  be  a last  opportu- 
nity, to  bear  faithful  testimony  to  the  assistance 
rendered,  in  all  my  studies  of  this  sort,  by  my 
friend  Mr.  John  Patton  of  Montreal.  No  single 
person  has  helped  me  so  much,  so  wisely,  or  so 
well. 

In  order  to  secure  technical  accuracy,  my  manu- 
script and  proofs  have  been  subjected  to  the  revision 
of  my  friend,  the  Hon.  Samuel  E.  Sewall.  The 
principal  alteration  which  Mr.  Sewall  has  made 
has  been  the  substitution  of  the  word  u suffrage  ” 
for  that  of  u franchise  ; ” which  latter  I used  in  the 
Continental  fashion.  I prefer  it  to  “ suffrage,”  be- 
cause it  seems  to  have  a broader  signification ; but 
I yield  it  to  his  suggestion. 

I would  gladly  have  dedicated  this  volume  to  the 
memory  of  the  late  John  W.  Browne,  whose  pure 
purpose  and  eminent  gifts  made  me  rejoice,  while 
he  was  living,  to  call  him  friend.  As,  however,  he 
never  read  the  whole  of  the  manuscript,  I have 
given  it  a dedication,  which  no  one,  who  knew  him 
well,  will  fail  to  perceive  includes  him. 

Caroline  H.  Dall. 

No.  5,  Ashland  Place, 

Sept.  1,  1861. 


TABLE  OP  CONTENTS. 


I. 

THE  ORIENTAL  ESTIMATE  AND  THE  FRENCH 
LAW. 

The  Seat  of  the  Law  the  Bosom  of  God?  Of  what  Law?  Legal 
Restrictions  constantly  outgrown.  The  Laws  which  relate 
to  Woman.  Vishnu  Sarma:  the  Hindoo  Wife  must  use  the 
Dialect  of  the  Slave.  Ancient  Chinese  Writer.  Kohl  on 
Turkish  Husbands.  The  Island  of  Coelebes.  The  Garrows 
in  the  North-east  of  India.  The  Muhar.  Military  Tribe  of 
Nairs  in  Malabar.  Later  Proverbs;  used  by  the  Satirists. 
The  Four  Points  to  consider.  Discussion  of  Marriage  and 
Divorce  to  be  deferred.  The  Public  Opinion  which  has 
educated  Woman,  and  her  Approximation  to  it.  Woman 
under  Roman  Law.  Absence  of  well-tested  Cotempora- 
neous  Evidence.  Theodora.  French  Law.  Bonaparte’s 
Opinion.  The  Estimate  of  a Double  Character.  Condition 
of  the  Peasant-woman.  Need  of  Love  in  the  Upper  Classes. 
Business-freedom.  George  Sand.  Rosa  Bonheur,  and  the 
Claimants  for  Civil  Rights.  The  Dotal  founded  on  Roman 
Law;  the  Communal  founded  on  German.  Dotal  Law 
rejected  throughout  Europe.  Protection  means  Subordina- 
tion. As  a “ Public  Merchant,”  Woman  becomes  a French 


XVI 


CONTEXTS. 


Citizen.  Position  contradictory:  not  allowed  to  rule  the 
Household,  which  is  called  her  Sphere.  Civil  Position.  No 
Right  of  Promotion.  Laws  of  Louisiana.  Estimate  of 
Woman  under  the  “Code  Napoldon:”  tends  to  lower  her 
Wages.  List  of  Employments.  The  Needle -women  of 
Paris pp.  1-33 

II. 

THE  ENGLISH  COMMON  LAW. 

It  contains  all  to  which  we  have  any  Need  to  object.  Literature. 
“ The  L awe’s  Resolution  of  Woman’s  Rights.”  Inquiries  as 
to  its  Author.  Probability  points  to  Sir  John  Doderidge. 
The  Law,  for  Single  Women,  of  Inheritance.  Offices  open. 
Right  to  vote,  and  Lady  Packington.  Sheriff  of  Westmore- 
land. ; Lady  Rous.  Henry  VIII.  and  Lady  Anne  Berkeley. 
As  Constable,  and  Overseer  of  the  Poor.  Female  Voter  in 
Nova  Scotia.  Law  relating  to  Seduction:  its  Profanity. 
The  French  Law,  as  summed  up  by  Legouv£.  Woman’s 
Opinion  of  this  Law.  Objections.  Laws  concerning  Married 
Women.  Impossibility  of  Divorce,  from  Hopeless  Insanity. 
Instances  where  Men  have  taken  the  Law  into  their  own 
Hands.  Impossibility  of  Woman’s  ever  doing  this.  Marriage 
of  a Minor.  A Wife  loses  all  her  Rights.  Satire  in  a London 
Court.  Truth  of  this.  Consequent  Unwillingness  of  the 
honest  Poor  to  marry,  and  of  Single  Women  of  Rank  to  relin- 
quish Power.  The  Descendant  of  Morgan  the  Buccaneer. 
Need  of  Equity.  May  make  a Will  by  Permission.  Nutri- 
ment of  Infants.  The  Law  resists  Material  Influence,  and 
denies  Natural  Authority.  Word  not  binding.  Gifts  Illegal. 


CONTENTS. 


XVII 


Indictments  in  the  Husband’s  Name.  Divorces:  only  Three 
ever  granted  to  women.  The  Widow  recovers  her  Clothes 
and  Jewels,  but  need  not  bury  her  Husband.  Christian  on 
Suffrage.  Moderate  Correction.  Property-laws.  The  Hon. 
Mrs.  Norton.  Hungarian  Freedom.  Right  to  vote.  Experi- 
ence in  America.  Parisian  Milliner.  “ Union  is  Robbery.” 
The  Heiress.  Longevity  of  the  Wife.  Woman  discouraged 
from  Labor  by  the  Influence  of  the  Laws  of  Property.  Sexual 
Legislation  thoroughly  Immoral.  Man’s  Adultery  even  a 
more  serious  Evil  than  Woman’s,  so  far  as  State  Morals  and 
Interests  are  concerned.  Canton  Glarus.  “ Courts  have  never 
gone  that  Length.”  Debate  on  the  New  Divorce  Bill.  Man’s 
Fidelity  considered  an  Imbecility.  The  Compliments  of  the 
Law.  The  Husband’s  Vigilance.  Duplicity  the  Natural  Re- 
sult of  Slavery.  The  Right  of  Suffrage.  Objections  answered. 
The  abstract  Right  and  the  practical  Question.  Suffrage 
to  be  limited  by  Education,  not  Money  nor  Sex.  The  u Sad 
Sisterhood.”  Woman  has  never  had  a Representative.  Her 
Suffrage  would  put  an  End  to  Three  Classes  of  Laws.  Harris 
vs.  Butler.  Delicate  Matters  to  be  discussed.  The  Duke  of 
York’s  Trial.  John  Stuart  Mill’s  Opinion.  Dedication  of  his 
Essay  on  Liberty.  Women  of  Upsal.  On  Juries.  Miss 
Shedden.  Russell  on  Female  Evidence.  Fate  of  the  “ Bul- 
warks of  the  English  Constitution.”  Power  of  Women  not  dis- 
puted while  it  was  dependent  on  Property.  It  should  depend 
on  Humanity.  Louis  XIV.  and  the  Fish-women.  Pauline 
Roland  and  Madame  Moniot.  Men  borrow  the  Suffrages 
of  Women.  Saxon  Witas.  Abbess  Hilda.  Council  at 
Benconceld.  King  Edgar’s  Charter.  Abbesses  in  Parliament. 
Peeresses  in  Parliament.  East-India  Stockholders.  Stock- 
b 


XV111 


CONTENTS. 


holders  in  Banks.  Association  for  the  Promotion  of  Social 
Science.  Mrs.  Mill’s  Article.  Florence  Nightingale’s  Evi- 
dence. Petition  to  Parliament,  and  its  Signer.  The  New 
Divorce  Bill.  Buckle’s  Lecture.  Canadian  Changes.  In- 
consistencies. Canadian  Women  as  Voters.  Pitcairn’s 
Island pp.  34-115 


III. 

THE  UNITED -STATES  LAW,  AND  SOME  THOUGHTS 
ON  HUMAN  RIGHTS. 

Condition  of  Women  in  Republics.  Helvetia.  Kent  on  the 
Law’s  Estimate.  “ The  Man’s  Notion.”  Property-laws,  and 
natural  Obligations  of  Husband  and  Wife.  The  Law’s  Indul- 
gence. Marriage  and  Divorce  in  the  different  States.  Variety 
of  the  Laws.  “Cruelty.”  What  have  the  Woman’s-Rights 
Party  done?  — changed  the  Law  in  nineteen  States.  The 
Law  of  Illinois.  Rhode  Island  on  Property.  Vermont. 
Connecticut.  New  Hampshire.  Massachusetts,  and  what 
remains  to  be  done.  Maine.  Ohio.  Judge  Graham’s  Deci- 
sion. Mrs.  Dorr’s  Claim.  New-York  Property-bill  of  1860, 
and  its  Supplement.  Relief  to  5,000  Women.  Mrs.  Stanton 
before  the  Legislature.  The  Right  of  Suffrage  in  New  Jersey. 
Wisconsin.  Michigan.  Ohio.  Kansas.  Connecticut.  Ken- 
tucky in  Reference  to  Suffrage.  A Woman’s  Right  to  Life, 
Liberty,  and  the  Pursuit  of  Happiness.  Mrs.  John  Adams  and 
Hannah  Corbin  understood  its  Worthlessness.  Richard  Henry 
Lee  on  a Woman’s  Security.  “ Woman’s  Rights,”  — a Phrase 
we  all  hate : identical  with  “ Human  Rights,”  — a Phrase  we 


CONTENTS. 


XIX 


all  honor.  Reception  of  Woman  in  the  Lyceum.  Labor  to 
be  honored  through  Woman.  Trade  to  become  a Fine  Art. 
Property-holders  must  have  political  Power.  Mr.  Phillips 
on  Suffrage.  The  Lowell  Mill.  Dr.  Hunt’s  Protests.  Mean 
Men.  Woman’s  Duty  to  the  State  a moral  Duty.  Woman’s 
Right  to  Man  as  Counsellor  and  Friend.  The  Constitution 
of  the  Family.  The  Historical  Development  of  the  Ques- 
tion. Mary  Astell  in  the  Seventeenth  Century.  Mary  Woll- 
stonecraft  in  the  Eighteenth,  and  the  Customs  of  Australia. 
Responses  to  her  Appeal.  Margaret  Fuller  in  the  Nineteenth. 
The  great  Lawsuit  in  1844.  Convention  at  Seneca  Falls  in 
1848.  National  Association  in  1850.  Profane  Inanity.  Chi- 
nese Women.  Does  Power  belong  to  Humanity  or,  to  Pro- 
perty? Mahomet,  and  the  Right  to  rule.  Wendell  Phillips 
and  the  Venetian  Catechism.  .....  pp.  116-164 


I. 


THE  ORIENTAL  ESTIMATE  AND  THE 
FRENCH  LAW. 


u We  seldom  doubt  that  something  in  the  large 
Smooth  order  of  creation,  though  no  more 
Than  haply  a man's  footstep,  has  gone  wrong.” 


E B.  Browning. 

“ The  law  of  God,  positive  law  and  positive  morality,  sometimes 
coincide , sometimes  do  not  coincide,  and  sometimes  conflict 

John  Austin:  Province  of  Jurisprudence  Defined. 


F Law,  no  less  can  be  said  than  that 


her  seat  is  the  bosom  of  God  ; her 
voice,  the  harmony  of  the  spheres.  All  things 
in  heaven  and  earth  do  her  reverence ; the 
greatest  as  needing  her  protection,  the  mean- 
est as  not  afraid  of  her  power.” 

In  reading  this  magnificent  and  well-known 
sentence  from  Hooker,  the  imagination  is  easi- 
ly kindled  to  a divine  prescience.  We  accept 
the  definition.  Fair  before  ns  rise  the  grace- 
ful proportions  of  eternal  order  in  society, 


l 


2 


THE  ORIENTAL  ESTIMATE 


upon  which  wait  present  peace  and  future 
progress  ; towards  which  those  bow  most 
reverently  who  live  most  purely  and  see 
most  clearly.  But  alas  ! if  the  reader  be  a 
woman,  her  heart  may  well  sink  when  the  en- 
thusiasm of  the  moment  has  passed ; and  she 
must  ask,  with  a feeling  somewhat  akin  to 
displeasure,  “ Of  what  law  realized  on  earth, 
administered  in  courts,  dealt  out  from  legisla- 
tures or  parliaments,  from  republics  or  auto- 
crats, were  these  sublime  words  written  ? 77 

Where  in  the  soft  shadows  of  Oriental 
hareems,  in  the  gloom  of  Hindoo  caves,  Egyp- 
tian pyramids,  or  Attic  porches,  sculptured 
by  divinest  art,  and  luminous  with  marbles  of 
every  hue  ; where  in  the  porticos  echoing 
to  Roman  stoicism,  or  the  baths  floating  on 
Roman  license  ; where  in  fife  saloons  of 
French  society,  or  by  the  hearths  of  good  old 
England ; relieve , alas  ! in  the  free  States  of 
America,  whether  North  or  South, — -has  a 
system  of  law  prevailed  that  women  could 
think  of,  without  blasphemy  as  sitting  in  the 


AND  THE  FRENCH  LAW. 


3 


bosom  of  God,  and  so  entitled  to  the  reve- 
rence of  man  ? 

We  outgrow  all  things.  Always  the  new 
patch  breaks  the  fabric  of  the  old  garment ; 
always  the  new  wine  shatters  as  it  ferments 
the  well-dried  leathern  pouch  which  held  the 
vintage  of  our  ancestors.  But  most  of  all 
do  we  outgrow,  have  we  outgrown,  our  laws. 
They  fall  back,  dead  letters,  into  the  abyss  of 
that  past  from  which  we  have  emerged.  We 
put  new  laws  upon  the  statute-book,  and  do 
not  pause  to  wipe  out  the  old  ; finding  our 
protection  in  the  public  feeling  and  the  pub- 
lic progress,  if  not  in  the  traditions  of  the 
elders. 

This,  and  this  only,  saves  old  systems  from 
violent  demolition.  Were  the  State  of  Con- 
necticut at  this  moment  to  attempt  to  put  in 
force  such  of  the  blue-laws  as  are  technically 
unrepealed,  she  would  be  met  by  the  open 
rebellion  of  her  highest  officer ; and  the  chief- 
justice  who  should  attempt  to  fine  a bishop 
for  kissing  his  wife  on  Sunday  might  shake 


4 


THE  ORIENTAL  ESTIMATE 


hands  cordially  with  the  chief-justice  who 
once  ruled  that  a man  might  beat  his  wife 
with  a stick  no  bigger  than  his  thumb  ! 

The  laws  which  relate  to  woman  are  based, 
for  the  most  part,  on  a very  old  and  a very 
Oriental  estimate  of  her  nature,  her  powers, 
and  her  divinely  ordained  position.  We  shall 
see  this,  if  we  follow  the  course  of  legal  en- 
actments or  religious  prohibitions  from  the 
beginning.  When  the  subject  of  Woman’s 
Civil  Rights  first  came  to  be  considered,  it 
was  customary  to  quote  from  the  scholars  one 
of  the  sayings  of  Vishnu  Sarma : u Every 
book  of  knowledge  which  is  known  to  Oosana 
or  to  Vreehaspatee  is  by  nature  implanted  in 
the  understandings  of  women.’7 

Nobody  asked  what  sort  of  knowledge  was 
known  to  these  two  deities ; but  most  readers 
took  it  for  granted  that  it  wras  divine:  and 
ordinary  people  asked  why,  if  society  began 
with  this  reverent  faith,  we  had  nothing 
better  now  than  the  practical  scepticism  of 
priest  and  lawyer.  When  the  names  of  these 


AND  THE  FRENCH  LAW. 


5 


two  deities  were  translated  into  Venus  and 
Mercury  (that  is,  into  love  and  cunning ),  the 
announcement  seemed  more  in  keeping  with 
the  subsequent  revelations  of  Vishnu  Sar- 
ma : — - 

“ Women,  at  all  times,”  he  says,  “ have  been 
inconstant,  even  among  the  Celestials.” 

“ Woman’s  virtue  is  founded  upon  a modest  coun- 
tenance, precise  behavior,  rectitude,  and  a deficiency 
of  suitors .” 

u In  infancy,  the  father  should  guard  her  ; in 
youth,  her  husband  ; in  old  age,  her  children  : for 
at  no  time  is  a woman  fit  to  be  trusted  with  lib- 
erty.” 

u Infidelity,  violence,  deceit,  envy,  extreme  ava- 
rice, a total  want  of  good  qualities,  with  impurity, 
are  the  innate  faults  of  womankind.” 

These  extracts  will  throw  some  light,  per- 
haps, upon  the  knowledge  of  Oosana  and 
Vreeliaspatee,  and  will  save  modern  women 
from  any  very  strong  desire  to  restore  the 
“ good  old  rule.”  After  such  a commentary 
on  this  seeming  compliment,  we  shall  not 
think  it  strange,  that,  in  a country  where  clia- 


G 


THE  ORIENTAL  ESTIMATE 


leet  is  the  exponent  of  condition,  the  most 
ancient  drama  represents  the  Hindoo  wife  as 
addressing  her  lord  and  master  in  the  dialect 
of  a slave. 

“ It  is  proper/7  says  an  ancient  Hindoo  scrip- 
ture, “for  every  woman,  after  her  husband’s 
death,  to  burn  herself  in  the  fire  with  his 
corpse.77  I quote  this  saying  here  only  to 
advert  to  the  power  of  public  opinion,  which 
has  been  strong  enough  for  ages  to  compel 
this  sacrifice.  But  for  it,  many  a woman,  who 
had  been  burnt  during  her  whole  conjugal 
life  in  the  fires  of  tyranny,  self-will,  and  arro- 
gant dominion,  might  have  hailed  with 'joy  the 
hour  of  her  release.  Under  it,  such  a woman 
went  calmly  to  the  new  martyrdom. 

An  ancient  Chinese  writer  tells  us,  that  the 
newly  married  woman  should  be  but  an  echo 
in  the  house.  Her  husband  may  strike  her, 
starve  her,  nay,  even  let  her  out ! Such  was 
the  spirit  of  most  Oriental  custom  and  law. 
It  has  crossed  the  Ural : so  that  Kohl,  the  Ger- 
man traveller,  tells  us  that  a Turk  blushes  and 


AND  THE  FRENCH  LAW. 


7 


apologizes  when  he  mentions  his  wife,  as  if 
he  had  been  guilty  of  a needless  imperti- 
nence. The  same  thing  is  reported  of  one 
of  the  Sclavic  tribes,  among  whom  it  may 
have  been  borrowed  from  their  Ottoman  con- 
querors. 

There  were,  however,  singular  exceptions 
to  the  prevailing  estimate.  In  the  Island  of 
Coelebes,  where  the  government  is  republican 
in  form,  the  president,  and  four  out  of  six 
councillors,  are  not  unfrequently  women.  In 
the  diary  of  the  Marquess  of  Hastings,  we 
are  told,  that  among  the  Garrows,  a populous 
and  independent  clan  in  the  hill  country  in  the 
north-east  of  India,  all  property  and  authority, 
descend  in  the  female  line.  On  the  death  of 
the  mother,  the  bulk  of  the  possessions  goes 
to  the  favorite  daughter,  so  designated,  with- 
out regard  to  primogeniture  in  her  lifetime. 
The  widower  has  a stipend  settled  on  him  at 
the  time  of  marriage,  and  a moderate  portion 
is  given  to  each  daughter.  The  sons  are 
expected  to  support  themselves.  A woman, 


THE  ORIENTAL  ESTIMATE 


called  Muhar,  is  the  chief  of  each  clan.  Her 
husband  is  called  Muharree,  and  has  a repre- 
sentative authority,  but  no  right  to  her  pro- 
perty. Should  he  incline  to  squander  it,  the 
clan  will  interfere  in  her  behalf.  When 
the  Duke  of  Wellington  fought  the  battle  of 
Assay e,  in  1803,  against  the  Mahrattas,  a wo- 
man, the  Begum  of  Lumroom,  belonging  to  the 
military  tribe  of  Nairs,  fought  against  him  at 
the  head  of  her  cavalry.  In  this  tribe  the  suc- 
cession follows,  according  to  the  duke’s  report, 
the  female  line.  This  was  on  the  coast  of 
Malabar,  south  of  Bombay,  and  in  what  we 
should  call  the  south-western  part  of  the  Dec- 
can.  In  spite  of  the  difference  in  orthography, 
and  the  statement  about  the  north-east,  I think 
these  stories  may  refer  to  the  same  clan.  An 
orthography  so  variously  rendered  as  the  East 
Indian  is  a blind  guide. 

Quite  evident  is  it  that  the  proverbs* of 
more  western  and  later-born  nations  grew  out 
of  the  estimate  of  Vishnu  Sarma  and  his  com- 
peers. Look  at  them  : — 


AND  THE  FRENCH  LAW. 


9 


“ A rich  man  is  never  ugly  in  the  eyes  of  a girl.” 

“ A beautiful  woman,  smiling,  tells  of  a purse 
japing.” 

u Every  woman  would  rather  be  handsome  than 
/good.” 

u A house  full  of  daughters  is  a cellar  full  of 
Sour  beer.” 

u Three  daughters  and  the  mother  are  four  devils 
for  the  father.” 

“ A man  of  straw  is  worth  a woman  of  gold.” 

u A rich  wife  is  a source  of  quarrel.” 

u ’Tis  a poor  roost  where  the  hen  crows. ” 

“ A happy  couple  is  a husband  deaf  and  a wife 
blind.”) 

It  is  quite  evident,  I think,  that  men  made 
these  proverbs  ; and  somewhat  mortifying,  not 
to  women  only , but  to  our  common  humanity, 
that  they  should  have  the  run  of  society  and 
the  newspapers,  in  an  age  which  has  given 
birth  to  Florence  Nightingale,  Mary  Patton, 
and  Dorothea  Dix,  — women  who  have'  been 
born  only  to  remind  us  that  their  counterparts 
appeared  a thousand  years  ago. 

Aristophanes  and  Juvenal,  Boileau  and 
Churchill,  turn  these  slanderous  proverbs  into 


10 


THE  ORIENTAL  ESTIMATE 


verse,  if  not  into  poetry ; and,  in  examining 
the  laws  of  more  modern  times,  we  shall  con- 
stantly trace  the  effect  of  the  old  Oriental 
estimate.  In  all  such  examinations,  we  have 
four  points  to  consider : — 

1st,  That  estimate  of  woman  on  which  her 
civil  position  is  founded,  and  those  rights  of 
property  which  are  granted  or  refused  to  her 
accordingly. 

2d,  Such  laws  as  relate  to  marriage  and 
divorce. 

3d,  Such  laws  or  customs  as  keep  woman 
out  of  office,  off  the  jury,  and  refuse  her  all 
authorized  legitimate  interference  in  public 
affairs. 

4th,  Her  right  of  suffrage. 

Of  these  points,  the  discussion  of  such  laws 
as  relate  to  marriage  and  divorce  is  alone  to 
be  restricted  by  any  considerations  of  pru- 
dence. It  has  never  seemed  to  me  a wise 
thing  to  open  needlessly  this  discussion ; and 
the  opening  of  it  by  women  is  needless,  while 
they  are  in  no  position  to  discuss  it  equally 


AND  THE  FRENCH  LAW. 


11 


with  men.  In  the  marriage  relation,  whatever 
is  the  certain  loss  and  misery  of  one  sex  is 
also  the  certain  loss  and  misery  of  the  other. 
Whatever  inequality  and  injustice  appertains 
to  it  will  be  best  removed  when  the  two  sexes 
can  consider  it  together,  like  two  equal  and 
competent  powers.*  I shall  advert  to  the 
laws  of  marriage  and  divorce,  only  to  point 
out  mistakes  or  bad  results  not  generally  per- 
ceived, and  make  no  attempt  to  treat  them  at 
length. 

When  we  consider  what  sort  of  public 
opinion  has  educated  woman,  what  estimate 
has  lain  at  the  bottom  of  all  the  laws  passed 
concerning  her,  it  does  not  seem  strange, 
that,  after  ages  passed  in  a false  position, 
she  should  somewhat  approximate  to  this  es- 
timate ; so  that  we  say  with  pain  of  the  mass 
of  women,  that  they  themselves  need  a change 
quite  as  much  as  their  circumstances.  It  is 

* Of  course,  I do  not  mean  to  be  understood  here  as  object- 
ing to  any  temperate  and  earnest  attempt  by  men  or  women  to 
amend  law. 


12 


THE  ORIENTAL  ESTIMATE 


common,  in  treating  of  this  subject,  to  divell 
on  the  position  of  woman  under  the  Roman 
law;  but  very  little  is  gained  by  it.  We  can 
see  by  the  literature  of  the  nation  what  esti- 
mate was  put  upon  woman,  and  what  share 
she  took  in  the  degradation  of  society ; but 
how  far  this  was  the  consequence  of  bad  law, 
what  changes  were  wrought  from  the  time  of 
Justinian,  not  merely  in  law,  but  in  moral 
soundness  under  the  law,  it  is  not  easy  to  tell 
in  a country  which  had  neither  printing-press- 
es nor  newspapers.  We  have  only  the  judg- 
ment of  a few  men,  themselves  law-makers,  to 
rely  upon ; and  their  opinions  had  a very  lim- 
ited circulation  in  their  lifetime,  and  could  not 
be  tested  by  any  cotemporaneous  verdict.  It 
is  in  vain  that  we  listen  to  testimony  when 
no  competent  witnesses  appear  on  the  u other 
side.”  Women,  however,  ought  always  to 
remember  to  whom  they  owe  the  changes 
made  in  Justinian’s  time.  The  life  of  Theo- 
dora is  yet  to  be  written.  The  scandalous 
anecdotes  of  a secret  history  must  some  day 


AND  THE  FRENCH  LAW. 


13 


be  balanced  by  tlie  public  testimony  of  Pro- 
copius, and  some  good  be  told  of  the  woman 
whose  first  thought,  when  raised  to  empire, 
was  for  the  companions  of  her  previous  in- 
famy, and  whose  influence  over  her  husband 
never  faltered,  and  is  visible  in  every  modifi- 
cation of  the  laws  relating  to  her  sex.  If  we 
could  realize  the  corruptness  of  the  higher 
classes  of  society,  we  should  not  wonder  at 
the  emperor  who  chose  his  wife  from  the 
streets ; and  the  fact  itself  tells  a story  which 
he  who  heeds  need  not  misunderstand.* 


* It  will  easily  be  conjectured  that  I do  not  feel  competent  to 
treat  the  great  subject  of  Roman  legislation  for  women,  in  the 
noble  and  extended  manner  which  is  at  once,  as  it  seems  to  me, 
necessary  and  possible.  Perhaps  I shall  never  become  so. 

It  seems  to  me  proper,  however,  that  I should  indicate  my 
dissatisfaction  with  existing  methods  in  the  clearest  manner,  and 
drop  a few  hints,  as  I do  in  the  text,  as  to  the  difficulties  in  the 
way. 

Roman  sepulchral  inscriptions,  of  the  era  generally  considered 
the  most  licentious,  bear  witness  in  the  fullest  manner  to  the 
existence  of  chastity  and  domestic  virtue.  A sepulchral  inscrip- 
tion, it  may  be  argued,  is  a poor  witness  to  facts.  I would 
suggest  in  reply,  that  a nation  ceases  to  commemorate  the  virtue 
which  has  ceased  to  exist,  or  which  it  has,  through  a general 
depravity  of  manners,  ceased  to  respect. 


14 


THE  ORIENTAL  ESTIMATE 


The  laws  which  most  directly  affect  us  here 
in  America  are  the  laws  of  France  and  Eng- 
land : the  laws  of  France,  because  they  mo- 
dify the  code  of  Canada,  Florida,  and  Louisi- 
ana ; the  laws  of  England,  because  in  her 
common  law,  recognized  all  over  the  country 
by  all  the  States,  we  find  the  basis  of  all  that 
is  objectionable  in  our  legislation. 

First,  then,  let  us  consider  the  estimate  on 
which  the  French  law  is  based,  and  then  its 
property-laws.  Civil  position  and  the  right 
of  franchise  can  be  disposed  of  in  a few  words 
the  world  over.  “ There  is  one  thing  which 
is  not  French/7  said  Bonaparte,  as  he  closed  a 
cabinet  council,  while  preparing  his  famous 
Code ; u and  that  is,  a woman  who  can  do  as 
she  pleases.77 

The  estimate  of  woman  in  France  is  of  a 
double  character. 

It  is  low,  because  marriage  among  the  up- 
per classes  is,  at  the  best,  only  a well-made 
bargain. 

It  is  high , because  women  have  been  en- 


AND  THE  FRENCH  LAW. 


15 


couraged  to  enter  trade,  both  by  law,  which 
protects  them  in  their  capacity  as  merchants, 
and  by  the  military  character  of  the  nation, 
which  prevents  men  from  entering  busi- 
ness. 

It  is  low , because  throughout  the  provinces 
there  are  remnants  of  old  feudal  custom, 
which  keep  her  in  the  position  of  a slave. 
The  peasant’s  wife  rarely  sits  at  table  : she 
crouches  in  the  chimney-corner,  eating  from 
the  stew-pan;  while  her  husband  sits  at  the 
table  in  state  before  his  porringer.  Yet,  in 
another  respect,  this  very  woman  helps  to 
raise  the  estimate  of  her  sex ; for  she  works 
with  her  husband  in  the  field,  while  a wealth- 
ier wife  is  often  only  a burden.  Like  him, 
she  is  exposed  to  all  the  changes  of  the 
weather.  Pregnancy  does  not  save  her  from 
the  plough  or  the  vintage.  While  her  hus- 
band rests  at  noon,  she  must  nurse  her  babe 
or  prepare  his  meal. 

In  most  countries,  it  is  desirable  to  turn 
the  thoughts  of  women  away  from  love,  and 


16 


THE  ORIENTAL  ESTIMATE 


give  them  some  healthier  occupation.  In 
France,  it  would  be  well  to  stimulate  the 
affections,  because  covetousness,  a desire  of 
worldly  position,  or  splendid  wealth,  is  the 
main  motive  to  a marriage.  With  us,  love 
constitutes  the  whole  life  of  many  a woman  ; 
while  it  may  be  only  an  episode  in  that  of 
her  husband. 

In  France,  even  woman  seldom  loves,  but 
marries  to  establish  herself  in  life.  It  is  against 
this  greed  that  she  needs  to  be  cautioned,  not 
against  that  emotion  and  sentiment  which  God 
meant  should  be  both  a safeguard  and  a bless- 
ing. Love  must  rescue  woman  from  vanity, 
self-indulgence,  and  empty  show.  Only 
through  its  divine  power  will  she  come  to 
perceive  the  true  nature  of  that  shameful 
bargain,  by  which  she  surrenders  what  is 
most  precious  to  appease  the  thirst  of  soci- 
ety. If  we  would  save  and  serve  humanity 
here , we  must  let  natural  susceptibilities  have 
their  full  play. 

At  the  same  time,  the  business  freedom 


AND  THE  FRENCH  LAW. 


17 


which  women  enjoy  in  France  has  led  many 
women  to  reflect  thoroughly  and  act  vigor- 
ously. The  reading  world  is  deluged  with 
books  relating  to  woman,  — her  education,  her 
labor,  and  her  civil  rights.  Out  of  this  con- 
dition of  things  spring  a class  who  long  to 
share  the  sorrow  and  responsibility  as  well 
as  the  joy  of  liberty.  They  will  not  accept 
the  tenderness  and  pity  of  such  men  as  Mi- 
chelet, who  veil  a profound  sensualism  with 
the  graces  of  an  affected  sentimentality. 
Sometimes,  like  George  Sand,  these  women 
break  loose  from  social  ties,  test  the  world 
for  themselves,  and,  when  they  have  squeezed 
the  orange  which  looked  so  tempting,  show  to 
others  the  empty,  bitter  rind,  and  return  glad- 
ly to  the  daily  bread  of  Divine  Ordinance. 
Once,  in  Rosa  Bonheur,  fresh  and  wise,  ener- 
getic and  vigorous,  the  French  woman  has 
challenged  the  attention  of  the  civilized  world. 
With  no  womanish  weaknesses,  frank,  loyal, 
and  endowed  with  a serious  and  reflective 
nature,  this  artist  has  asked  no  leave  to  be  of 
2 


18 


THE  ORIENTAL  ESTIMATE 


church  or  society.  u I have  no  patience/7  she 
once  said,  “ with  women  who  ask  permission 
to  think.  Let  women  establish  their  claims 
by  great  and  good  works,  and  not  by  conven- 
tions.77 She  took  the  whole  world  in  her  two 
brave  woman’s  hands,  found  her  inheritance, 
and  resolved  to  enjoy  it. 

It  is  in  France,  too,  that  Clara  Demars 
thinks  out  all  the  psychological  relations  of 
love  and  marriage,  and  reminds  us  of  Mrs. 
John  Stuart  Mill,  by  saying  that  u truth  will 
never  reign  over  the  world,  nor  between  the 
sexes,  until,  by  being  set  free,  woman  loses 
all  temptation  to  dissimulate.77 

There,  too,  Flora  Tristan  provokes  a smile 
by  echoing  in  prose  the  rhythmic  platitudes 
of  Mr.  Coventry  Patmore,  and  claiming,  not 
equality , but  sovereignty  and  autocracy,  for 
woman. 

There  Pauline  Poland  boldly  claims  that 
marriage  shall  never  be  tolerated,  till  man  as 
well  as  woman  is  compelled  to  keep  the  law 
of  chastity. 


AND  THE  FRENCH  LAW. 


19 


There  Madame  Moniot  claims  her  civil 
rights  from  the  lecturers  desk;  and  Desiree 
Gay,  interesting  herself  practically  in  the 
question  of  woman’s  labor,  rules  the  women 
of  the  national  workshops. 

When  both  sides  of  this  picture  are  stu- 
died ; when  we  look  back,  on  the  one  hand,  to 
Marie  Antoinette  and  Madame  Recamier,  and, 
on  the  other,  to  Madame  Roland,  Madame  de 
Stael,  and  Marie  de  Lamourous,  — it  is  not 
strange  that  the  fanciful  protectorship  of 
such  men  as  Michelet  should  be  balanced  by 
a claim,  made  not  only  by  Talleyrand,  but 
Condorcet,  for  woman’s  full  equality  as  a la- 
borer and  a citizen.  And  this  varying  and 
inconsistent  estimate  of  woman,  made  evident 
in  the  social,  industrial,  and  literary  spheres 
of  France,  is  strangely  sustained  by  her  legal 
enactments.  The  “ Code  Napoleon  ” is  found- 
ed on  the  Roman,  and  is  very  similar  to  the 
English  common  law,  so  far  as  it  concerns  wo- 
man : but  beside  this  law,  which  is  called,  in 
reference  to  married  women,  the  dotal,  there 


20 


THE  ORIENTAL  ESTIMATE 


is  another,  called  the  communal ; and,  before 
marriage,  parties  may  choose  between  these 
two.  That  contract  once  signed,  they  must 
abide  by  their  choice  ever  after.  If  the  dotal 
law  is  founded  on  Roman  law  and  usage,  and 
so  came  naturally  enough  to  prevail  in  South- 
ern France  until  the  time  of  the  Revolution; 
so  the  communal  law  prevailed  at  the  North, 
and  is  founded  on  the  German  habits  and  laws, 
beneath  which  always  lay  the  idea,  that,  if  not 
technically  a laborer,  the  wife,  by  care  and 
industry,  — the  thrift  of  the  housewife,  — con- 
tributed to  the  acquisition  of  property. 

It  is  very  singular  that  all  the  nations  of  Con- 
tinental Europe,  with  the  exception  of  Spain, 
have  rejected  the  dotal  or  Roman  law.  The 
objection  to  it  seems  to  have  arisen  out  of 
the  fact,  that  it  permits  the  wife’s  property 
to  be  settled  solely  on  herself,  and  to  be  so 
secured  against  her  husband’s  debts.  In  the 
community  of  estates,  the  property  of  each  is 
liable  for  the  debts  of  either.  It  was  on  this 
account,  probably,  that,  while  the  “ Code  Napo- 


AND  THE  FRENCH  LAW. 


21 


leon  ” elucidated  and  defined  the  dotal  sys- 
tem, it  expressly  provided  for  the  right  of 
choice  in  the  parties,  and  declared,  that,  if 
no  choice  were  made,  they  should  be  sup- 
posed to  be  living  under  the  German  or 
communal  law. 

The  Dutch  law  is  essentially  the  same. 
When  the  u Code  Napoleon  ” came  into  force, 
there  were  not  wanting  French  legislators  to 
say,  that  woman  was  now  better  protected 
than  ever  before.  But  this  legal  protection  is 
of  a kind  due  only  to  minors  and  lunatics. 
This  law,  like  our  own,  suspects,  not  only  the 
intelligence  of  woman,  but  her  integrity ; and 
aims  not  to  protect  her , but  man , against  her 
weakness  or  fraud.  In  marriage,  the  husband 
administers  for  both,  not  only  the  common 
property,  but  her  personal  possessions.  That 
is  to  say,  by  pretending  to  protect  it , the  law 
takes  away  from  woman  her  personal  property. 
It  often  happens,  that  a woman  who  has 
brought  her  husband  a large  property  is  com- 
pelled to  shift  in  narrow  ways,  like  a beggar 


22 


THE  ORIENTAL  ESTIMATE 


or  a miser,  on  account  of  his  parsimony  or 
personal  ill-will. 

The  wife  cannot  give  away  the  smallest  ar- 
ticle, not  even  such  as  have  been  gifts  to  her : 
and  the  934th  article  of  the  “ Code  Napoleon  77 
declares,  “ that  the  wife  may  not  accept  a 
gift  without  the  consent  of  her  husband  ; or, 
if  he  should  refuse,  without  the  approbation 
of  a magistrate.77  She  cannot  pledge  their 
common  property,  even  though  it  were  to  set 
her  husband  free  when  imprisoned  for  debt ; 
nor,  in  the  event  of  his  absence,  to  secure 
necessaries  for  his  children,  without  the  same 
magisterial  authority.  Commonly,  this  autho- 
rity would  be  readily  obtained  ; but  it  is  easy 
to  see  that  many  cases  might  arise,  when, 
from  defeated  purposes,  personal  enmity,  or 
the  influence  of  the  husband  against  her,  it 
would  be  all  but  impossible. 

Even  in  case  of  bankruptcy,  French  legisla- 
tors tell  us,  the  rights  of  the  wife  are  protect- 
ed. But  this  very  protection  is  insulting;  for 
it  treats  the  wife  as  if  she  must  of  necessity 


AND  THE  FRENCH  LAW. 


23 


be  either  an  inert  instrument  in  the  hands  of 
her  husband,  or  a dupe,  whose  weakness  he 
might  readily  abuse.  Through  such  protec- 
tion, the  dishonest  merchant  finds  it  easy  to 
defraud  his  creditors. 

Now,  this  “ Code  Napoleon  77  says  that  u the 
husband  owes  protection  to  his  wife ; and  the 
wife,  on  her  side,  owes  obedience  to  her  hus- 
band : 77  but  it  goes  on  to  secure  the  obedience 
by  giving  the  husband  an  unlimited  right  to 
the  person  of  the  wife,  without  in  any  way 
providing  the  promised  protection. 

44  The  wife  must  live  with  her  husband,  and  fol- 
low him  wherever  he  sees  fit  to  go.  As  for  him, 
he  must  receive  her,  and  furnish  her  with  necessa- 
ries according  to  her  wealth  and  rank.” 

Now,  this  clause  actually  constrains  no  one 
bait  the  wife ; for  what  would  be  the  condi- 
tion of  a woman  who  followed  her  husband 
against  his  will,  and  remained  under  his  roof 
when  he  was  determined  that  she  should 
quit  it?  Under  such  circumstances,  his  re- 
cognition of  her  wealth  and  rank  would  be 


24 


THE  ORIENTAL  ESTIMATE 


very  apt  to  fall  to  the  level  of  his  own 
irritation. 

The  French  code  will  interfere  to  protect  a 
wife  against  the  total  loss  of  her  property,  if 
she  can  prove  some  loss  already  experienced, 
either  from  the  improvidence  or  the  bad  con- 
duct of  her  husband  ; but  it  keeps  her  power- 
less to  protect  herself  against  that  first  loss. 
Having  thus,  and  for  such  reasons,  obtained  a 
separate  jurisdiction  over  her  property,  she 
cannot  alienate,  mortgage,  or  acquire  a title 
to  new  property,  without  her  unworthy  hus- 
band’s consent  in  person  or  on  paper.  The 
guardianship  of  the  children  is  left  to  the  sur- 
vivor of  the  marriage  ; but  the  mother’s  right 
in  such  case  may  be  restrained  by  the  father’s 
and  husband’s  will.  He  can  appoint  a trustee 
to  be  associated  with  her.  As  a business  wo- 
man, even  if  separated  in  estate,  the  wife 
cannot  make  or  dissolve  a contract  without 
the  consent  of  her  husband. 

As  a “ public  merchant  ” under  the  com- 
munal system,  — that  is,  pledged  in  her  own 


AND  THE  FRENCH  LAW. 


25 


name,  — she  is  free  from  this  restraint.  As 
a citizen  of  the  French  republic,  she  in  that 
case  supports,  conjointly  with  her  husband, 
all  State  charges.  She  is  taxed  as  much  as 
he ; for  their  common  income  is  diminished 
as  much  for  one  as  for  the  other.  She  has  no 
suffrage ; but,  on  the  other  hand,  she  is  not 
liable  for  military  service.  She  has  no  rights  : 
a state  of  things,  which,  if  it  be  excusable 
when  she  is  absorbed  into  her  husband’s  per- 
sonality, is  only  absurd  when  she  fulfils  all 
the  functions  of  a citizen.  Well  may  Legouve 
exclaim,  u that,  if  the  household  be  woman’s 
own  sphere,  she  ought  to  be  queen  in  it ; and 
her  own  faculties  should  secure  her  this  su- 
premacy. Her  opponents  should  be  forced, 
on  their  own  principles,  to  emancipate  her  as 
daughter,  wife,  and  mother.”  The  woman 
who  owns  an  estate,  is,  under  this  law,  sole 
mistress  of  it.  She  signs  the  leases  and 
makes  the  bargains.  She  pays  the  State  tax, 
an  additional  rate  to  her  own  department,  a 
town  tax,  and  a tax  on  roads.  It  is  with  her 


26 


THE  ORIENTAL  ESTIMATE 


that  the  local  or  general  government  treat,  if 
they  cut  through  her  estate  for  public  ends. 
Against  them,  if  wronged,  she  herself  carries 
suit.  By  her  influence  as  a proprietor,  she 
controls  many  votes  ; yet  she  is  not  permitted 
to  cast  one.  She  cannot  directly  control  the 
position  of  the  very  representative  who  im- 
poses her  taxes.  She  is  in  the  same  position 
with  regard  to  all  the  higher  officers,  who 
decide  such  questions  as  affect  the  value  of 
her  estate.  As  citizen,  therefore,  under  the 
communal  law,  her  position  is  uncertain  and 
contradictory. 

So  much  for  the  estimate  of  woman  in 
France ; and  so  much  for  the  rights  of  pro- 
perty, of  marriage,  and  of  suffrage,  founded 
upon  that  estimate.  What  is  her  civil  posi- 
tion? what  office  or  employment  is  open  to 
her?  Women  are  better  off  in  France,  it  is 
again  said,  than  ever  before.  As  merchants, 
fair  chances,  barred  by  some  contradictions 
and  anomalies,  await  them ; but  whoever  pon- 
ders their  condition  cannot  fail  to  see,  that 


AND  THE  FRENCH  LAW. 


27 


here,  as  elsewhere,  the  protection  afforded  by 
the  law  is  merely  the  vigilance  of  a police  of- 
ficer, which  protects  the  criminal,  not  for  her 
own  sake,  but  for  that  of  society,  which  her 
very  existence  is  supposed  to  endanger. 

The  most  desirable  amelioration  of  her  lot 
will  be  secured  by  the  admission  of  her  free 
personality.  When  society  strikes  out  from 
the  statute-book  all  distinctions  of  sex,  and 
admits  that  she  is  a person  capable  of  think- 
ing and  acting  for  herself,  she  will  lay  the 
foundation  of  a new  civilization. 

In  France,  we  are  told,  women  sometimes 
fill  public  functions.  They  may  be  postmis- 
tresses, and  inspectors  of  schools  ; or  they  may 
take  charge  of  the  bureaus  of  wood  or  tobac- 
co. They  may  also  be  inspectors  of  public 
asylums,  — a right  and  a duty  of  very  great 
importance.  As  a public  functionary,  woman 
fills  few  and  inferior  posts  ; but  in  these  she 
exercises  and  possesses  all  the  rights  of  a 
man,  with  one  exception,  — that  exception, 
alas  ! the  very  keystone  on  which  all  human 


28 


THE  ORIENTAL  ESTIMATE 


success  must  rest:  I mean,  the  right  of  'pro- 
motion■.  Do  not  smile,  prompted  by  an  un- 
worthy apprehension  of  my  meaning.  It  is 
not  because  women  are  more  greedy  or  more 
ambitious  than  men  that  I call  the  right  to 
promotion  the  keystone  of  their  success. 
Only  small  and  narrow  natures  can  be  content 
in  a treadmill.  If  constant  motion  will  not 
carry  her  over  the  top  of  the  wheel,  instinct 
prompts  the  reasoning  creature  to  abate  her 
efforts.  No  man  of  his  own  free  will  turns 
into  a road  which  abuts  upon  a stone  wall. 
The  State  turnpike  is  better,  where  the  way- 
farer may  die  by  a sunstroke,  or  perish  of  a 
frost ; where  endless  miles  stretch  over  uncul- 
tivated wastes:  better;  for  here,  at  least,  the 
way  is  open,  the  sky  overhead.  — Before  pro- 
ceeding to  speak  of  the  English  common  law, 
it  will  perhaps  be  well  to  turn  from  the  “ Code 
Napoleon  ” to  the  law  of  Louisiana,  in  which 
the  influence  of  the  two  forms  of  French  law 
still  shows  itself.  I do  not  consider  the  laws 
of  Canada,  because  they  are  complicated,  not 


AND  THE  FRENCH  LAW. 


29 


only  by  the  English  common  law,  but  by  Ca- 
nadian statutes,  somewhat  in  the  spirit  of  our 
own  recent  enactments,  and  by  curious  ar- 
chaeological remains  of  feudal  law,  — - laws 
which  would  sound  like  the  decrees  of  II a- 
roun  al  Raschid,  were  I to  tax  your  soberness 
by  setting  them  before  you.  They  are,  let  us 
be  thankful,  of  small  practical  importance, 
as  is  the  great  body  of  all  law.* 

In  Louisiana,  according  to  the  civil  code  of 
1824,  the  partnership  of  gains  arising  during 
coverture  exists  by  law  in  every  marriage, 
without  express  stipulation  to  the  contrary. 
But  the  parties  may  regulate  their  married 
obligations  as  they  please,  provided  they  do 
nothing  immoral.  The  wife’s  property  is 
“ dotal.”  What  she  brings , her  paraphernalia, 


* The  great  body  of  all  law  is  of  small  practical  importance, 
because,  in  spite  of  the  five  points  of  Calvinism  and  the  long 
faces  of  many  bearded  philosophers,  the  majority  of  mankind 
not  only  obey  the  law,  but  transcend  it,  — do  better  than  it 
requires.  It  is  only  the  few  who  transgress;  and  thus  many 
absurdities  are  never  or  very  rarely  dragged  into  the  light  of  a 
“ decision.” 


30 


THE  ORIENTAL  ESTIMATE 


is  “ extra-dotal.”  The  dowry  belongs  to  the 
husband  during  marriage  ; and  he  has  the  ad- 
ministration of  the  partnership,  and  may 
alienate  his  revenue,  without  his  wife’s  con- 
sent : but  he  cannot  convey  the  common  es- 
tate. If,  before  marriage,  he  should  stipulate 
that  there  should  be  no  partnership,  his  wife 
preserves  the  entire  control  of  her  own  pro- 
perty. Her  heirs  take  her  separate  estate ; 
even  money  received  by  her  husband  on  her 
account.  If  there  be  no  agreement  as  to  the 
expenses,  the  wife  contributes  one-half  of  her 
income.  Her  landed  estate,  whether  dotal  or 
not,  is  not  affected  by  his  debts.  She  is  a 
privileged  creditor,  and  has  the  first  mortgage 
on  his  property. 

If  the  parties  have  agreed  to  the  “ partner- 
ship of  gains,”  the  common  property  is  liable 
for  the  debts  of  either.  On  the  death  of 
either  party,  one-half  of  the  property  goes  to 
the  survivor;  the  other,  to  the  heirs  of  the 
dead  partner. 

You  will  perceive  that  this  law  seems  a 


AND  THE  FRENCH  LAW. 


31 


loose  mixture  of  the  Roman  or  dotal  sytem 
with  the  German  communal  law,  based  on  the 
partnership  of  gains  ; but  the  common  law 
takes  it  for  granted  that  the  partnership  ex- 
ists, where  there  is  no  express  stipulation  to 
the  contrary.  As  a public  trader,  the  wife 
may  bind  herself  in  whatever  relates  to  her 
business,  without  her  husband’s  consent,  — 
may  even  make  a will ; and  reference  is  made 
to  the  u Code  Napoleon,”  in  the  same  way,  to 
all  appearance,  that  we  refer  to  the  common 
law  of  England. 

The  estimate  of  woman  upon  which  the 
u Code  Napoleon  ” is  founded  has  the  same 
effect  upon  her  earnings  as  the  English  com- 
mon law.  As,  in  marriage,  the  policy  has  been 
to  keep  her  subordinate  and  inferior ; to  give 
her  no  privileges  which  should  lead  to  inde- 
pendence : so,  in  business,  the  effect  of  the 
law  is  to  keep  the  price  of  her  work  down, 
and  give  her  as  few  escapes  from  household 
drudgery  as  may  be ; to  offer  her,  in  fact,  no 
temptation  to  escape. 


32 


THE  ORIENTAL  ESTIMATE 


As  polishers,  burnishers,  and  copper-work- 
ers ; as  glove-makers,  enamellers,  and  wire- 
drawers  ; as  flax -beaters  and  soakers;  as 
spinners,  gauze-workers,  and  winders ; as  bas- 
ket-makers, and  temperers  of  steel ; as  knife- 
handlers,  embroiderers,  and  wheel-turners  ; 
as  velvet-makers,  cockle-gatherers,  and  ivory- 
workers  ; as  packers,  knitters,  satin-makers, 
and  folders ; as  picture-colorers,  and  workers 
in  wood  ; as  casters,  weighers,  and  varnishers  ; 
as  shoe-makers,  strap-makers,  lace-makers,  and 
cocoon-winders,  — the  French  employ  many 
women ; and  the  estimate  of  the  law  is  prac- 
tically indicated,  there  as  well  as  here,  in  the 
price  of  the  labor  done. 

The  highest  wages  marked  upon  my  list  are 
those  paid  to  the  workers  in  a porcelain  fac- 
tory, who  received  one  franc  and  fifty  cen- 
times a day,  or  thirty  cents.  The  lowest  are 
those  paid  to  cockle  - gatherers  and  lace- 
makers  ; that  is,  from  twenty  to  twenty-five 
centimes,  or  from  four  to  five  cents  a day. 

The  fact  that  the  poor  lace-makers,  who  lose 


AND  THE  FRENCH  LAW. 


33 


their  eyesight  and  their  lives  bending  over 
their  bobbins,  are  paid  the  same  wages  as  the 
loitering  girls  who  pick  up  gay  cockles  on 
the  beach,  shows  how  little  the  price  of  the 
labor  depends  on  the  value  of  the  work  done, 
and  tells  the  whole  story  in  a breath.  The 
wages  of  the  needlewomen  of  Paris  have 
been  diminishing  ever  since  1847,  and,  ac- 
cording to  the  “ Revue  des  Deux  Mondes,” 
now  average  only  from  twenty  to  twenty-five 
cents  a day. 


3 


II. 


THE  ENGLISH  COMMON  LAW. 


“ And  we,  perusing  o’er  these  notes, 

May  know  wherefore  we  took  the  sacrament, 

And  keep  our  faiths  firm  and  inviolable.” 

King  John. 


JN  approaching  the  subject  of  English  com- 
mon law,  we  come  nearer  to  our  own 
special  interests.  Twenty  years  ago,  I am 
safe,  I think,  in  presuming  that  this  law  was 
the  basis  of  all  our  legislation  in  regard  to 
woman,  if  we  except  that  in  French  or  Spanish 
territory ; and,  in  criticizing  its  provisions,  I 
shall  criticize  all  that  is  objectionable,  whether 
in  the  laws  that  have  been  changed,  or  in  the 
laws  that  remain  to  be  changed,  in  our  own 
States. 

If  we  were  to  examine  the  literature  of 
England  with  reference  to  this  subject,  we 
should  probably  find  from  the  beginning  many 


THE  ENGLISH  COMMON  LAW. 


35 


protests  against  the  present  position  of  wo- 
man. It  is  never  safe,  for  instance,  to  assume 
what  poets  may  or  may  not  have  said.  If 
Dry  den  could  get  so  far  as  to  say  that  there 
is  u no  sex  in  souls,”  one  would  think  the 
gentle  Chaucer  and  heavenly-minded  Daniel 
doubtless  discerned  still  deeper  things ; but 
of  lawyers  we  may  say  with  some  truth,  that 
their  early  protests  were  so  quietly  made  as 
scarcely  to  be  recognized,  or  were  made  for 
the  most  part  by  unread  and  anonymous  wri- 
ters. 

In  the  “ Lawe’s  Resolution  of  Woman’s 
Rights,”  published  in  the  year  1632,  there 
seems  to  be  a distinct  recognition  of  the  true 
nature  of  the  law : — 

“ The  next  thing  that  I will  show  you,”  says 
the  author,  u is  this  particularity  of  law.  In  this 
consolidation  which  we  call  wedlock  is  a locking 
together.  It  is  true,  that  man  and  wife  are  one 
person  ; but  understand  in  what  manner.  When  a 
small  brooke  or  little  river  incorporateth  with  Rlio- 
danus,  Humber,  or  the  Thames,  the  poore  rivulet 
looseth  her  name  ; it  is  carried  and  recarried  with 


36 


THE  ENGLISH  COMMON  LAW. 


the  new  associate  ; it  beareth  no  sway ; it  possesseth 
nothing  during  coverture.  A woman,  as  soon  as 
she  is  married,  is  called  covert ; in  Latine,  nupta ,— 
that  is,  6 veiled  ; ’ as  it  were,  clouded  and  oversha- 
dowed : she  hath  lost  her  streame.  I may  more 
truly,  farre  away,  say  to  a married  woman,  Her 
new  self  is  her  superior  ; her  companion,  her  mas- 
ter.” 

Still  farther  : “ Eve,  because  she  had  helped  to 
seduce  her  husband,  had  inflicted  upon  her  a spe- 
cial bane.  See  here  the  reason  of  that  which  I 
touched  before,  — ■ that  women  have  no  voice  in 
Parliament.  They  make  no  laws,  they  consent  to 
none,  they  abrogate  none.  All  of  them  are  un- 
derstood either  married  or  to  bee  married,  and 
their  desires  are  to  their  husbands.  I know  no 
remedy,  though  some  women  can  shift  it  well 
enough.  The  common  lawe  here  shake th  hand 
with  divinitye.” 

In  this  plain  statement  of  the  old  black-let- 
ter book  lies  the  root  of  the  evil  with  which 
we  contend : u All  of  them  are  married  or  to 
bee  married,  and  their  desires  are  to  their  hus- 
bands.’7 Woman,  single,  widowed,  or  pursuing 
an  independent  vocation,  never  seems  to  have 
entered  the  head  of  the  law,  as  a possible 


THE  ENGLISH  COMMON  LAW. 


37 


monster  worth  providing  for.  The  world  of 
that  day  believed  in  the  sea-serpent , but  not  in 
her  ! This  book,  “ The  Lawe’s  Resolution  of 
the  Rights  of  Woman/7  was,  so  far  as  I know, 
first  brought  under  our  notice  by  Mrs.  Bo- 
dichon’s  quotation,  m her  “ Brief  Summary  of 
the  English  Law.77  Then  a few  copies  found 
their  way  to  this  country,  and  into  the  hands 
of  curious  persons.  People  began  to  wonder 
who  wrote  the  quaint  old  book.  In  pleading 
before  our  own  Legislature  in  the  spring  of 
1858,  I was  myself  asked  by  the  committee 
who  was  its  author ; and  I think  it  but  right 
to  rescue  from  oblivion  the  probable  name  of 
this  early  friend  to  woman  and  justice.  It  is 
always  difficult  to  trace  an  anonymous  book, 
and,  this  time,  more  difficult  than  usual,  as 
it  was  probably  published  after  its  author’s 
death. 

Sir  John  Doderidge,  to  whom  my  attention 
was  directed  by  an  eminent  antiquarian,  was 
an  able  lawyer,  and  an  industrious  compiler 
of  law-books  of  a special  kind.  He  was  from 


THE  ENGLISH  COMMON  LAW. 


Devonshire,  and  admitted  as  a barrister  in 
1603.  He  was  successively  appointed  Solici- 
tor-General, Judge  of  the  Common  Pleas  and 
of  the  King’s  Bench.  Among  the  works 
known  to  be  his,  yet  not  commonly  included 
in  the  list  of  his  works,  are  the  u Lawyer’s 
Light,”  published  in  1629 ; and  u The  Complete 
Parson,”  with  the  laws  relating  to  advowsons 
and  livings,  in  1670,  — books  of  the  same  class, 
character,  and  appearance  as  the  “Lawe’s  Re- 
solution.” 

As  he  died  in  1628,  I was  at  first  inclined 
to  suspect  the  fairness  of  this  inference : but 
a further  examination  showed  that  all  his  pub- 
lications were  posthumous;  which  accounts, 
perhaps,  for  the  candor  of  their  covert  satire. 
A few  particulars  of  his  life  and  standing  may 
be  gained  from  the  new  Life  of  Lord  Bacon, 
where  Hepworth  Dixon  says  that  “ the  Soli- 
citor-Generalship, vacant  once  more,  is  given, 
over  Francis  Bacon’s  head,  to  Sir  John  Dode- 
ridge,  Serjeant  of  the  Coif.”  In  1606,  when 
Sir  Francis  Gawdy  dies,  “ Coke  goes  up  to  the 


THE  ENGLISH  COMMON  LAW. 


39 


bench ; and  Doderidge,  the  Solicitor-General, 
ought,  by  the  custom  of  the  law,  to  follow 
Coke,  leaving  the  post  of  Solicitor  void  : but 
Cecil  raises  Sir  Henry  Hobart,  his  obscure 
Attorney  of  the  Court  of  Wards,  over  both 
Doderidge  and  Bacon’s  head,  to  the  high  place 
of  Attorney-General.”  Since  that  day,  Ben- 
tham  and  Catharine  Macauley,  Mary  Woll- 
stonecraft,  and  John  Stuart  Mill,  have  made  the 
same  complaint ; sustaining  it,  however,  by 
vigorous  argument  for  woman’s  full  emancipa- 
tion, and  a demand  for  the  right  of  suffrage. 

Let  us  look  at  this  English  law.  So  far  as 
it  affects  single  women,  it  is  very  simple. 

A single  woman  has  the  same  rights  of 
property  as  a man ; that  is,  she  may  get  and 
keep,  or  dispose  of,  whatever  she  can.  She 
has  a right,  like  man,  to  the  protection  of 
the  law,  and  has  to  pay  the  same  taxes  to  the 
State. 

u Duly  qualified,”  she  may  vote  on  parish 
questions  and  for  parish  officers ; and  “ duly 
qualified,”  in  England,  means  that  she  shall 


40 


THE  ENGLISH  COMMON  LAW. 


have  a certain  amount  of  property,  and  so  a 
vested  interest  in  the  prosperity  of  her  pa- 
rish. If  her  parents  die  without  a will,  she 
shares  equally  with  her  brothers  in  the  divi- 
sion of  the  personal  property ; but  her  eldest 
brother  and  his  issue,  even  if  female,  will  take 
the  real  estate  as  heir-at-law.  If  she  be  an 
only  child,  she  inherits  both  personal  and  real, 
and  becomes  immediately  that  most  pitiable  of 
creatures,  an  heiress. 

The  church  and  all  state  offices  are  closed 
to  women.  They  find  some  employment  in 
rural  post-offices ; but  there  is  no  important 
office  they  can  hold,  if  we  except  that  of  so- 
vereign. This  is  sometimes  spoken  of  as  an 
inconsistency;  but  if  we  reflect  upon  the  po- 
sition of  a constitutional  sovereign,  whose 
speeches  are  the  work  of  her  minister,  and 
whose  actions  indicate  the  average  conscience 
of  a cabinet  council,  we  shall  find  her  legally 
but  very  little  more  independent  than  other 
women  technically  classed  with  minors  and 
idiots. 


THE  ENGLISH  COMMON  LAW. 


41 


There  have  been  a few  women  governors 
of  prisons,  overseers  of  the  poor,  and  parish 
clerks  ; but  public  opinion  still  effectually 
bars  most  women  from  seeking  or  accepting 
office. 

The  office  of  Grand  Chamberlain  was  filled 
by  two  women  in  1822.  That  of  Clerk  of  the 
Crown,  in  the  Court  of  Queen’s  Bench,  has 
been  granted  to  a female  ; and,  in  a certain 
parish  of  Norfolk,  a woman  was  recently  ap- 
pointed parish  clerk,  because,  in  a population 
of  six  hundred  souls,  no  man  could  be  found 
able  to  read  and  write  ! 

In  an  action  at  law,  it  has  been  determined 
that  an  unmarried  woman,  having  a freehold, 
might  vote  for  members  of  Parliament.  Mr. 
Higginson  tells  us  that  a certain  Lady  Pack- 
ington  returned  two. 

In  all  periods,  there  have  been  women  who 
have  held  exceptional  positions,  under  pecu- 
liar influence  of  wealth  or  rank  or  circum- 
stances ; and  though  this  has  not  affected  the 
position  of  other  women,  or  given  them  any 


42 


THE  ENGLISH  COMMON  LAW. 


more  freedom,  yet  it  is  valuable  in  itself, 
because  it  has  kept  the  possibility  of  their 
employment  always  open,  and  acted  like  a 
practical  protest  against  the  law. 

The  Countess  of  Pembroke  was  hereditary 
Sheriff  of  Westmoreland,  and  exercised  her 
office.  In  the  reign  of  Queen  Anne,  Lady 
Rous  did  the  same,  u girt  with  a sword.” 
Henry  VIII.  once  granted  a commission  of 
inquiry,  under  the  great  seal,  to  Lady  Anne 
Berkeley,  who  opened  it  at  Gloucester,  and 
passed  sentence  under  it. 

Some  of  the  old  legal  writers  averred,  that 
a woman  might  serve  in  almost  any  of  the 
great  offices  of  the  kingdom.  Lately  we  find 
it  stated  that  a woman  may  be  elected  as 
constable,  since  she  can  hire  a man  to  serve 
for  her ; but  she  may  not  be  elected  “ overseer 
of  the  poor,  because,  in  this  case,  substitution, 
if  not  impossible,  would  be  difficult ! 

What  were  the  peculiar  political  excite- 
ments which  enabled  Lady  Packington  to 
return  two  members  of  Parliament,  we  are 


THE  ENGLISH  COMMON  LAW. 


43 


not  told ; but  it  is  quite  certain  that  women 
of  twenty-one,  duly  qualified,  cannot  and  do 
not  vote  for  members  of  Parliament  by  vir- 
tue of  that  decision.  In  rural  districts,  where 
personal  influence  weighed  a good  deal,  such 
a vote  might  be  courteously  winked  at.  A 
woman  of  property  and  standing,  in  Nova 
Scotia,  has  in  this  manner,  for  more  than  for- 
ty years,  cast  her  annual  vote,  without  rebuke 
or  interruption ; but,  should  any  number  of 
women  act  on  this  precedent,  a legal  restraint 
would  doubtless  be  laid. 

No  single  woman,  having  been  seduced,  has 
any  remedy  at  common  law ; neither  has  her 
mother  nor  next  friend.  If  her  father  can 
prove  service  rendered,  he  may  sue  for  loss  of 
service. 

In  what  u bosom  of  divinitye  ” does  this  law 
rest?  Here  is  a remedy  provided  for  the  loss 
of  a few  hours,  but  no  penalty  held  up  in 
terror em,  to  warn  man  that  he  may  not  trifle 
with  honor,  womanly  purity,  and  childish  ig- 
norance or  innocence. 


44 


THE  ENGLISH  COMMON  LAW. 


In  the  eye  of  this  law,  female  chastity  is 
only  valuable  for  the  work  it  can  do.  It  must 
not  be  thought,  however,  that  the  English 
common  law  stands  alone  in  this  moral  de- 
formity. Under  the  French  law,  female  chas- 
tity does  not  seem  of  any  worth,  even  in 
consideration  of  the  work  it  can  do.  In  hon- 
est indignation,  Legouvd  exclaims,  — 

u Let  a man,  who  has  seduced  a child  of  fifteen 
years  by  a promise  of  marriage,  be  brought  before 
a magistrate.  He  has  under  the  law  a right  to  say, 
c There  is  my  signature,  it  is  true  ; but  I deny  it. 
A debt  of  the  heart  is  void  before  the  law.’  ” 

Thus  everywhere,  in  practice  and  theory, 
in  society  and  in  law,  for  rich  and  poor,  is 
public  purity  abandoned,  — the  bridle  thrown 
upon  the  neck  of  all  restive  and  depraved  na- 
tures. 

Manufacturers  seduce  their  work-people ; 
the  heads  of  workshops  refuse  to  employ  girls 
who  will  not  sell  themselves,  soul  and  body, 
to  them  ; masters  corrupt  their  servants.  Out 
of  5,083  lost  women  counted  by  Duchatelet 


THE  ENGLISH  COMMON  LAW. 


45 


at  Paris  in  1830,  there  were  285  domestic  ser- 
vants seduced,  and  afterwards  dismissed  by 
their  employers.  Commission-merchants,  offi- 
cers, students,  deceive  the  poor  girls  from  the 
province  or  the  country,  drag  them  to  Paris, 
and  leave  them  to  perish.  At  all  the  great 
centres  of  industry,  as  at  Rheims  and  at  Lille, 
are  societies  organized  to  recruit  the  houses 
of  sin  in  Paris. 

This  is  well  known  to  be  true  of  all  the 
large  English  towns ; yet  the  law  is  power- 
less, and  philanthropy  interferes  with  no  other 
result  than  that  of  driving  these  societies 
from  one  post  to  another. 

Can  women  be  expected  to  believe  that  the 
law  would  be  powerless,  if  there  were  a sound 
public  opinion  behind  it  to  sustain  the  law ; 
if  there  were  any  desire  on  the  part  of  the 
majority  of  men  that  it  should  be  sustained  ? 
u Punish  the  young  girl,  if  you  will/7  conti- 
nues Legouve  ; u but  punish  also  the  man  who 
has  ruined  her.  She  is  already  punished  ; 
punished  by  desertion;  punished  by  disho- 


46 


THE  ENGLISH  COMMON  LAW. 


nor ; punished  by  remorse  ; punished  by  nine 
months  of  suffering;  punished  by  the  charge 
of  a child  to  be  reared.  Let  him,  then,  be 
struck  in  his  turn.  If  not,  it  is  no  longer 
public  modesty  that  you  defend,  as  you  pre- 
tend : it  is  the  ‘ lord  paramount/  the  vilest  of 
the  rights  of  the  1 seigneur/  ” 

In  the  laws  which  regard  single  women,  we 
object,  then, — 

1.  To  the  withholding  of  the  elective  fran- 
chise. 

2.  To  the  law’s  preference  of  males,  and  the 
issue  of  males,  in  the  division  of  estates. 

3.  We  object  to  the  estimate  of  woman 
which  the  law  sustains,  which  shuts  her  out 
from  all  public  employment,  for  many  branch- 
es of  which  she  is  better  fitted  than  man. 

4.  We  object  to  that  estimate  of  woman’s 
chastity,  which  makes  its  existence  or  non- 
existence of  importance  only  as  it  affects  the 
comfort  or  income  of  man. 

We  do  not  mean  that  the  present  interpreta- 
tion of  the  common  law  does  not  sometimes 
show  a more  liberal  estimate  than  the  law  it- 


THE  ENGLISH  COMMON  LAW. 


47 


self;  but  rather  that  the  existence  of  this  law? 
unrepealed;  unchristianized , is  a forcible  re- 
straint upon  the  progress  of  society. 

“A  legal  fiction/’  says  Maine  in  his  “Ancient 
Law/’  “ signifies  any  assumption  which  con- 
ceals; or  affects  to  conceal,  the  fact,  that  a rule 
of  law  has  undergone  alteration,  its  letter  re- 
maining unchanged,  while  its  operation  is 
modified.”  Such  fictions  may  be  useful  in 
the  infancy  of  society ; but,  like  absurd  for- 
mulas and  embarrassing  technicalities,  they 
should  give  way  before  advancing  common 
sense,  before  the  diffusion  of  general  intelli- 
gence and  a common-school  system,  which  is 
destined  to  qualify  the  humblest  man  for  a 
full  understanding  of  the  law  under  which  he 
lives. 

We  have  now  to  consider  the  laws  concern- 
ing married  women . “ On  whatsoever  branch 

of  jurisprudence  may  lie  the  charge,”  says  a 
late  reviewer,  “ of  working  the  heaviest  sum 
of  suffering,  perhaps  we  shall  not  err  in 
saying  that  the  sharpest  and  cruellest  pangs 


48 


THE  ENGLISH  COMMON  LAW. 


are  those  which  have  been  inflicted  by  our 
marriage-laws.”  In  making  our  abstracts,  we 
have  need  to  avoid  the  absurd  complications 
which  confuse,  not  only  simple-minded  people, 
but  lawyers  themselves  ; and,  to  avoid  any 
charge  of  ignorance  or  mistake,  we  will,  as 
far  as  possible,  adopt  the  language  of  Mrs. 
Bodichon’s  “ Summary,”  which  has  stood  for 
six  years  before  the  English  public  without 
impeachment. 

We  shall  not  discuss  the  question,  as  to  what 
constitutes  fitness  for  marriage  in  the  eye  of 
the  law.  In  Scotland  and  in  England,  the  con- 
sent of  the  parties  is  said  to  be  the  “ essence 
of  marriage  ; ” but,  alas  ! in  how  many  cases 
is  this  “ consent  ” taken  for  granted  only, 
it  being,  in  fact,  the  most  baseless  of  legal 
fictions  ! 

In  commenting  on  the  English  law  as  com- 
pared with  the  Scotch,  the  reviewer  adds,  “A 
code  so  unsatisfactory,  so  unsettled,  and  by 
every  alteration  coming  so  palpably  near  to 
their  own  system,  is  one  which  Scotchmen 


THE  ENGLISH  COMMON  LAW. 


49 


may  be  pardoned  for  declining  further  to  con- 
sider, and  which  certainly  they  cannot  be 
expected  to  recognize  as  the  model  to  which 
their  own  should  be  conformed.” 

The  rule  of  the  English  law  was,  at  the  in- 
stitution of  the  Divorce  Court,  that  the  wife 
should  have  the  same  domicile  as  her  husband, 
and  that  within  English  territory.  A disho- 
nest domicile  barred  her  claim  to  divorce;  and 
the  husband  who  abandoned  his  wife,  and  fixed 
his  residence  abroad,  effectually  bound  her  to 
him.  Justice  has  of  late  been  done,  because 
it  was  justice,  heedless  of  the  question  of 
domicile. 

There  are  in  relation  to  this  subject  many 
provisions  which  wrong  men  and  women 
alike ; and,  if  there  are  any  which  especially 
wrong  woman,  they  wrong  man  in  a still  high- 
er degree  through  her.  As  an  example  of  the 
former  class,  we  may  take  the  impossibility 
of  release  from  a hopelessly  insane  partner, 
which  makes  the  point  of  the  wonderful  story  of 
“ Jane  Eyre.” 


4 


50 


THE  ENGLISH  COMMON  LAW. 


Now,  several  things  are  quite  evident  to  the 
eye  of  common  sense:  — 

First,  That  the  insane  partner  should  be 
properly  provided  for  during  life,  in  the  upper 
classes,  by  the  sane  partner;  in  the  lower,  by 
the  parish  or  state. 

Second , That  as  it  is  a sin  against  God  and 
society  to  bring  children  into  the  world,  born 
of  a hopelessly  insane  parent ; so,  on  the  other 
hand,  it  is  a sin  against  God  and  society  to 
compel  any  man  or  woman  to  a life  of  hope- 
less celibacy. 

Third , That,  if  the  law  does  use  this  compul- 
sion, it  is  responsible  for  the  vicious  connec- 
tions that  inevitably  grow  out  of  it ; u car 
les  mauvaises  lots  produisent  les  mauvaises 
mceursT  * I should  not  turn  aside  from  my 


* A curious  instance  of  the  immoral  result  of  holding  mar- 
riage sacramental,  and  indissoluble  under  all  circumstances, 
comes  within  my  personal  experience  while  I am  correcting  these 
pages  for  the  press,  Oct.  11,  1861. 

A young  Catholic  girl  was  divorced  some  years  ago,  imme- 
diately after  marriage,  on  account  of  the  bad  conduct  of  her 
husband.  She  was  received  into  the  family  of  a brother-in-law, 


THE  ENGLISH  COMMON  LAW. 


51 


main  point  to  consider  this,  even  for  a moment, 
if  it  were  not  a striking  instance  of  the  want  of 
common  sense  which  afflicts  the  common  law , 
and  if  I had  not  in  my  own  experience  been 
made  aware  of  its  frightful  results.  Within 
the  limits  of  one  small  parish  in  the  city  of  To- 
ronto, Canada  West,  I found  four  instances  in 
which  men  of  the  middle  class  had  taken  the 
right  of  divorce  into  their  own  hands,  and 
wrere  illegally  married  a second  time.  These 
persons,  if  not  markedly  religious,  were  re- 
spectable, orderly  members  of  society,  living 
properly  in  their  families,  supporting  the  wives 


in  every  way  highly  respectable.  For  the  last  two  years,  she 
has  been  courted  by  an  officer  in  the  navy  of  the  United  States ; 
but  nowhere  in  New  England  could  a Catholic  priest  be  found 
willing  to  marry  them.  The  church  still  holds  her  responsible 
to  her  first  vows.  The  officer  honestly  desired  to  marry  her; 
but  the  natural  result  of  her  ignorance  and  perplexity  followed. 
Expecting  to  become  a mother,  and  rejected  by  her  family,  she 
came  to  me  for  advice.  As  the  officer  is  a Protestant,  I recom- 
mended that  they  should  be  married  by  a minister  of  that  faith. 
She  again  consulted  her  priest,  and  was  told  that  it  was  less 
sinful  for  her  to  remain  in  her  present  relation  to  her  lover  than 
to  receive  a sacrament  from  unholy  hands;  the  priest  ignoring 
utterly  the  legal  protection  and  maintenance  which  she  might 
thus  receive. 


52 


THE  ENGLISH  COMMON  LAW. 


they  had  left,  and  justifying  the  course  they 
had  taken.  Two  of  them  had  left  England 
on  account  of  the  hopeless  insanity  of  their 
wives,  and  two  on  account  of  their  hopeless 
immorality;  the  latter,  cases  in  which  the  law 
would  have  granted  a divorce,  but  at  an 
expense  which  the  husband  could  not  pay. 
When  I first  heard  this  account  of  one  person, 
I resented  it  as  a slander,  and  went  to  console 
the  afflicted  wife,  who  was  overwhelmed  by 
the  supposed  rumor. 

The  husband  met  me  at  the  door,  with  an 
honest,  unabashed,  but  distressed  face.  “ Don7t 
deny  it  to  her/7  said  he.  “ I never  committed 
but  one  sin,  and  that  was  when  I kept  it  from 
her.  She  was  a sweet,  pious  creature ; and  I 
feared  she  would  not  consent.77 

This  man  told  me  that  he  sent  six  hundred 
dollars  yearly  to  his  insane  wife ; that  this 
kept  her  better  than  he  could  afford  to  keep 
himself  and  his  family : u but,77  said  he,  “ her 
station  was  always  higher  than  mine.77 

In  the  other  cases,  the  men  had  told  their 


THE  ENGLISH  COMMON  LAW. 


53 


stories,  and  the  wives  had  consented  to  the 
arrangement.  It  is  obvious,  that,  if  a wife 
wished  to  withdraw  from  a husband  in  this 
manner,  she  could  not  do  it,  on  account  of 
property  restrictions,  and  the  common  unfit- 
ness for  self-support.* 

In  the  marriage  of  a minor,  the  consent  of 
the  father,  or  of  a guardian  appointed  by  him, 
is  necessary,  but  not  that  of  the  mother : an- 
other indication  of  the  estimate  the  law  puts 
upon  woman,  as  compared  with  man  ; and  this 
estimate,  whenever  and  wherever  it  shows  it- 
self, has  the  effect  to  depress  every  woman’s 
desire  to  fit  herself  to  be  a good  citizen ; 
and,  when  she  fails  in  citizenship,  man  must 
fail  also,  as  is  ably  shown  by  De  Tocqueville. 

“ A hundred  times  in  the  course  of  my  life,” 


* The  only  excuse  for  considering  this  point,  in  an  essay 
pleading  especially  for  women,  is  that  the  law  bears  unequally 
on  the  two  sexes;  pressing  hardest  on  woman,  on  account  of  her 
pecuniary  dependence,  and  general  subordination  to  man. 

A woman,  every  reader  will  understand,  would  find  it  impos- 
sible to  free  herself  from  her  obligations,  like  the  men  referred  to 
in  the  text;  nor  is  it  desirable  that  she  should  free  herself  but 
that  the  law  should  free  her. 


54 


THE  ENGLISH  COMMON  LAW. 


he  says,  u I have  seen  weak  men  display  pub- 
lic virtue  because  they  had  beside  them  wives 
who  sustained  them  in  this  course,  not  by 
counselling  this  or  that  action  in  particular, 
but  by  exercising  a fortifying  influence  on 
their  views  of  duty  and  ambition.  Oftener 
still , I have  seen  domestic  influence  operating 
to  transform  a man,  naturally  generous,  noble, 
and  unselfish,  into  a cowardly,  vulgar,  and  am- 
bitious self-seeker,  who  thought  of  his  coun- 
try’s affairs  only  to  see  how  they  could  be 
turned  to  his  own  private  comfort  or  advance- 
ment ; and  this  simply  by  daily  contact  with 
an  honest  woman,  a faithful  wife,  a devoted 
mother,  from  whose  mind  the  grand  notion  of 
public  duty  was  entirely  absent.”  * 

A man  and  wife  are  one  person  in  law : a 
wife  loses  all  her  rights  as  a single  woman. 
Her  husband  is  legally  responsible  for  her 
acts:  so  she  is  said  to  live  under  his  cover. 
A woman’s  body  belongs  to  her  husband. 


National  Rev.  Apr.  1861,  pp.  291,  292. 


THE  ENGLISH  COMMON  LAW. 


55 


She  is  in  his  custody,  and  he  can  enforce  his 
right  by  a writ  of  habeas  corpus . 

This  last  is  one  of  the  points  in  which  the 
public  feeling  is  so  far  before  the  law,  that 
the  latter  could  never  be  wholly  enforced. 

If  a woman  were  unlawfully  restrained  of 
her  liberty,  her  husband  might  take  advan- 
tage of  a habeas  corpus  to  get  possession  of 
her ; but  it  is  not  probable  that  any  court,  in 
England  or  this  country,  would  now  grant  one 
to  compel  a wife  to  live  with  her  husband 
against  her  will.  Still,  the  estimate  of  the 
marriage  relation  which  such  laws  sustain  is 
so  low,  that  one  never  can  tell  what  will  hap- 
pen. 

In  the  year  1858,  a curious  but  uninten- 
tional satire  on  the  judicial  position  of  the  hus- 
band occurred  in  one  of  the  London  courts. 
A delicate,  much-abused  woman,  unmarried, 
but  who  had  been,  in  her  own  phrase,  “ living 
for  some  time  77  with  a man,  brought  an  action 
against  him  for  assault.  Erysipelas  had  in- 
flamed her  wounds,  and  endangered  her  life. 


56 


THE  ENGLISH  COMMON  LAW. 


u Had  she  died;  sirrah,”  said  the  magistrate, 
addressing  the  criminal,  u yon  must  have 
taken  your  trial  for  murder.  What  have  you 
to  say  in  your  defence?” 

“ I was  in  liquor,  sir,”  pleaded  the  man.  “ I 
gave  her  some  money  to  go  to  market.  I told 
her  to  look  sharp;  but  she  was  gone  more 
than  an  hour,  your  worship:  so,  when  she  came 
back,  I — I was  in  liquor,  your  honor.” 

The  magistrate  leaned  over  his  desk,  and, 
speaking  in  the  most  impressive  manner,  thus 
endeavored  to  cut  short  the  defence : — 
u This  woman  is  not  your  slave,  man.  She 
is  not  accountable  to  you  for  every  moment 
of  her  time.  She  is  not,”  he  continued  v7ith 
increasing  fervor,  but  a growing  embarrass- 
ment, — “ she  is  not  — she  is  not  ” — 

He  paused ; but  the  throng  of  wretched 
women  who  crowded  the  court  interpreted 
the  pause  aright,  and  were  not  likely  to  for- 
get the  lesson. 

A suppressed  titter  ran  through  the  court : 
for  every  married  man  knew  that  the  words, 


THE  ENGLISH  COMMON  LAW. 


57 


“ she  is  not  your  wife/’  were  those  which  had 
sprung  naturally  to  the  worthy  magistrate’s 
lips ; and  must  have  passed  them,  had  not  ho- 
nest shame  prevented. 

The  man  then  attempted  to  defend  himself 
on  the  ground  of  jealousy : but  this  was  in- 
stantly set  aside  ; the  unmistakable  impression 
left  on  the  mind  of  the  court-room  being,  that 
the  illegality  of  the  relation  was  wholly  in  the 
woman’s  favor. 

Women  long  ago  understood  this,  and  lite- 
rary gossip  gives  us  a late  instance  in  a maid- 
en aunt  of  Sir  Charles  Morgan.  This  woman, 
descended  from  Morgan  the  buccaneer,  has 
more  than  once  turned  the  scales  of  an  Irish 
election.  When  she  once  arrested  a robber 
on  her  own  premises,  and  held  him  fast  till 
the  arrival  of  an  officer,  the  gentlemen  of  the 
neighborhood  advised  her  not  to  prosecute. 

“ It  is  well  known,”  they  argued,  “that  you 
refuse  to  employ  a single  man  on  your  pre- 
mises, and  you  may  be  marked  out  for  the 
revenge  of  the  gang.” 


58 


THE  ENGLISH  COMMON  LAW. 


“Justice  is  justice/7  she  exclaimed  in  reply; 
“ and  the  villain  shall  go  hang  ! 77 

It  was  quite  natural  that  we  should  find 
this  woman  telling  Lady  Caroline  Lamb  that 
no  man  should  ever  have  legal  rights  over  her, 
or  her  property.  A wife’s  money,  jewels,  and 
clothes  become  absolutely  her  husband’s ; and 
he  may  dispose  of  them  as  he  pleases,  whether 
he  and  his  wife  live  together  or  not.  Her 
chattels  real  — that  is,  estates  held  for  a term 
of  years — and  presentations  of  church  livings 
become  absolutely  his ; but,  if  she  survive 
him,  she  may  resume  them. 

Under  such  a common  law  as  this,  it  is  not 
surprising  to  find  something  needed  which  is 
called*  equity.  Therefore,  if  a wdfe,  on  her 
marriage,  gives  all  her  property  to  her  hus- 
band, the  said  equity  (Heaven  save  the  mark  !) 
will,  under  certain  circumstances,  oblige  him 
to  make  a settlement  upon  her.  That  is,  when 
the  wife  has  an  interest  in  property  which 
can  only  be  reached  by  the  husband  through 
a court  of  equity,  that  court  will  aid  him  to 


THE  ENGLISH  COMMON  LAW. 


59 


enjoy  it,  only  on  condition  that  such  part  as  it 
thinks  proper  shall  be  settled  on  the  wife. 

The  civil  courts  in  England  cannot  compel 
a man  to  support  his  wife  : that  is  left  to  the 
action  of  the  church,  and  her  own  parish. 

A husband  has  a freehold  estate  in  his  wife’s 
lands  as  long  as  they  both  live. 

Money  earned  by  a married  woman  belongs 
absolutely  to  her  husband. 

By  her  husband’s  particular  permission,  she 
may  make  a will ; but  he  may  revoke  his  per- 
mission at  any  time  before  probate,  — that  is, 
before  the  will  is  exhibited  and  proved,  — 
even  if  after  the  wife’s  death. 

The  custody  of  a child  belongs  to  the  father. 
The  mother  has  no  right  of  control.  The  fa- 
ther may  dispose  of  it  as  he  sees  fit.  If  there 
be  a legal  separation,  and  no  special  order  of 
the  court,  the  custody  of  the  children  (except 
the  nutriment  of  infants)  belongs  legally  to  the 
father. 

Except  the  nutriment  of  infants!  Here  is  a 
hint  from  the  good  God  himself.  Should  we 


60 


THE  ENGLISH  COMMON  LAW. 


not  think,  that  the  first  time  these  words  were 
written  down,  and  men  were  compelled  to  see 
the  natural  dependence  of  the  child  upon  the 
mother,  — to  detect  the  obvious  laws  of  nur- 
ture, natural  and  spiritual,  — the  right  of  a 
good  mother  to  her  child  would  have  made 
itself  clear? 

Yet,  to  this  day,  there  are  many  States  of 
our  own  Union  where  a mother  can  better 
authenticate  her  right  to  a negro  slave  than 
to  the  young  daughter  who  is  bone  of  her 
bone,  and  flesh  of  her  flesh ! 

If  the  direct  influence  of  Christianity  did 
not,  in  some  measure,  modify  the  influence  of 
the  law  in  social  life,  there  would  be  no  such 
thing  as  a mother’s  exercising  maternal  au- 
thority over  a son.  No  matter  how  wise,  how 
old,  how  experienced,  she  may  be,  she  never 
possesses,  in  the  eye  of  the  law,  the  dignity  of 
a boy  who  has  just  attained  his  majority.  Suf- 
ficiently instructed  in  legal  maxims,  he  can 
always  resist  her,  under  the  influence  of  the 
most  besotted  or  unprincipled  of  fathers. 


THE  ENGLISH  COMMON  LAW. 


61 


The  word  of  a married  woman  is  not  bind- 
ing in  law,  and  persons  who  give  her  credit 
have  no  remedy  against  her. 

The  moral  results  of  such  a law  are  suffi- 
ciently obvious,  not  only  in  England,  but  in 
our  own  country.  The  statute-book  does  not, 
cannot,  stand  absolved,  because  public  opinion 
in  the  present  day  abhors  and  contemns  the 
woman  who  assists  her  husband  to  defraud  his 
creditors,  or  takes  refuge  from  her  own  debts 
behind  this  disgraceful  cover.  Yet,  if  the  law 
gives  her  husband  her  property,  it  ought 
surely  to  hold  Mm  responsible  for  her  debts. 
And  this  is  what  society  calls  protection ! 

As  a wife  is  always  presumed  to  be  under 
the  control  of  her  husband  (numerous  in- 
stances to  the  contrary  notwithstanding),  she 
is  not  considered  guilty  of  any  crime  which 
she  commits  in  his  presence. 

When  a woman  has  consented  to  a proposal 
of  marriage,  she  cannot  give  away  the  small- 
est thing.  If  she  do  so  without  her  betrothed 
husband’s  consent,  the  gift  is  illegal ; and,  af- 


62 


THE  ENGLISH  COMMON  LAW. 


ter  marriage,  he  may  avoid  it  as  a fraud  on 
him : a strong  temptation  to  any  woman,  one 
would  think,  to  give  away  her  all.  You  see 
here  what  estimate  the  law  puts  on  property, 
as  an  inducement  to  marriage.  This  provi- 
sion evidently  grew  out  of  the  exigencies  of 
the  time,  when  marriage  among  the  Anglo- 
Saxons  was  a pure  matter  of  bargain. 

As  a protection  against  the  common  law,  it 
is  usual  to  have  some  settlement  of  property 
made  upon  the  wife ; and,  in  respect  to  this 
property,  the  courts  of  equity  regard  her  as 
a single  woman.  Such  settlements  are  very 
intricate,  and  should  be  made  by  an  experi- 
enced lawyer. 

The  wife’s  property  belonging  to  the  hus- 
band, should  her  scissors,  thimble,  or  petti- 
coats, be  stolen,  the  indictment  must  describe 
either  of  these  articles  as  his  ! 

Of  divorce  it  is  only  necessary  to  say,  that 
a divorce  from  the  bonds  of  matrimony  in 
England  could  be  obtained  only  by  act  of  Par- 
liament ; the  right  of  investigation  resting 


THE  ENGLISH  COMMON  LAW. 


63 


with  the  House  of  Lords  alone.  Until  the 
passage  of  the  New  Divorce  Bill,  only  three 
such  divorces  had  ever  been  granted  to  a 
woman’s  petition.  The  expense  of  the  most 
ordinary  bill  was  between  three  and  four 
thousand  dollars. 

Nor  need  we  dwell  long  on  such  laws  as 
relate  to  widoivs.  You  may  be  interested  to 
hear,  that,  after  her  husband’s  death,  the  wi- 
dow recovers  her  right  to  her  own  clothes 
and  jewels ; also  that  the  law  does  not  com- 
pel her  to  bury  him,  that  being  the  duty  of 
his  legal  representative. 

The  indignation  which  we  might  naturally 
feel  at  the  suggestion,  that  a wife  could  forsake 
her  unburied  dead,  cools  a little  as  the  law 
goes  on  to  state,  that  a husband  can , of  course , 
deprive  a wife  of  all  share  in  his  personal  es- 
tate. Very  graciously,  also,  the  widow  is 
permitted  to  remain  forty  days  in  her  hus- 
band’s house,  provided  that  she  do  not  re- 
marry within  that  time  ! 

The  result  of  a great  deal  of  reading  of  a 


04 


THE  ENGLISH  COMMON  LAW. 


great  many  law-books  is  only  this,  — that  we 
are  more  firmly  convinced  than  ever,  that  the 
most  necessary  reform  is  a simple  erasure 
from  the  statute-book  of  whatever  recognizes 
distinctions  of  sex.  You  should  make  woman, 
in  the  eye  of  the  law,  what  she  has  always 
been  in  the  eye  of  God,  — a responsible  hu- 
man being ; and  make  laws  which  such  beings, 
male  or  female,  can  obey. 

Even  Christian,  in  his  edition  of  Blackstone, 
said  long  ago,  that  there  was  no  reason  why 
civil  rights  should  be  refused  to  single  wo- 
men. In  every  respect  but  this,  the  single 
woman  is  independent;  but  let  her  take  to 
herself  a husband,  and  the  law  steps  in  to 
protect  her,  and  she  finds  herself  in  a position 
of  what  is  called  “ reasonable  restraint.”  He 
may  give  her,  says  Blackstone,  moderate  cor- 
rection; he  may  adopt  any  act  of  coercion 
that  does  not  endanger  life  ; he  may  beat  her, 
but  not  violently.  She  may,  by  her  labor, 
support  him  : but  she  cannot  prevent  him  from 
bestowing  her  earnings,  should  he  happen  to 
die,  upon  those  who  have  most  wronged  her 


THE  ENGLISH  COMMON  LAW. 


65 


in  life ; liis  mistress,  it  may  be,  or  his  illegiti- 
mate children.  Do  you  tell  me  that  men  of 
good  feeling  never  act  on  such  laws  ? Why, 
then,  should  men  of  good  feeling  be  unwilling 
to  wipe  them  from  the  statute-book  ? 

For  the  most  part,  it  is  upon  women  of  the 
lower  class  that  the  property-laws  most  hardly 
press.  It  was  the  suffering  of  this  class,  years 
ago,  when  the  common  law  of  Massachusetts 
was  the  same  as  that  of  England,  that  first 
roused  my  interest,  and  excited  my  indigna- 
tion ; but  the  story  which  the  Hon.  Mrs.  Nor- 
ton tell  us  shows  that  this  class  of  women  are 
not  the  only  sufferers. 

u I have  learned  the  law  piecemeal,”  she  says, 
u by  suffering  all  it  could  inflict.  I forgave  my 
husband’s  wickedness  again  and  again,  and  found 
too  late,  that,  in  the  eye  of  the  law,  practical  Chris- 
tianity, the  forgiving  unto  seventy  times  seven,  was 
a condonation  which  deprived  me  of  all  protection. 
My  children  were  stolen  from  me,  and  put  into  the 
vilest  custody,  where  one  of  them  afterwards  died 
for  want  of  a mother’s  commonest  care.  My  hus- 
band brought  an  action  against  his  kindest  friend, 
of  whom  he  borrowed  money  and  received  office. 

5 


G6 


THE  ENGLISH  COMMON  LAW. 


The  jury  listened  with  disgust,  and  gave  their  ver- 
dict against  him.  Then  I was  told  that  I might 
write  for  my  bread,  or  my  family  might  support 
me.  My  children  were  kept  away,  as  their  resi- 
dence with  me  would  make  him  liable  for  my  debts. 

u When  my  mother  died,  and  left  me,  through  my 
brother,  a small  income,  he  balanced  the  first  pay- 
ment by  arbitrarily  stopping  his  own  allowance. 
For  the  last  three  years,  I have  not  received  a 
farthing  from  him.  He  retains  all  my  personal 
property  which  was  left  in  his  home,  the  gifts  of 
the  royal  family  on  my  marriage,  articles  bought 
with  my  own  earnings,  and  presents  from  Lord 
Melbourne.  He  receives  from  my  trustees  the  in- 
come which  my  father  bequeathed  to  me,  which  the 
c non-existent 5 wife  must  resign  to  the  ‘ existent 9 
husband. 

u I have  also  the  power  of  earning  by  literature  ; 
but  even  this  power,  the  gift  of  God,  not  the  legacy 
of  man,  bears  fruit  only  for  him.  Let  him  subpoena 
my  publishers,  and  enjoy  his  triumph : he  has  shown 
me  that  I was  not  meant  to  write  novels  and  tales, 
but  to  rouse  the  nation  against  such  men  as  he,  and 
such  laws  as  they  sustain.  Let  him  eat  the  bread 
I earn  ; but  it  shall  be  bought  with  the  price  of  his 
own  exposure.  If  law  will  not  listen  to  me,  to 
literature  I will  devote  my  power,  and  secure  for 
others  what  I have  not  been  able  to  secure  for  my- 
self.” 


THE  ENGLISH  COMMON  LAW. 


67 


No  wonder  that  provident  parents  circum- 
vent such  a common  law  by  a settlement 
before  marriage.  There  is  no  chance  for  a 
partnership  of  gains  or  losses  in  England. 

As  we  have  already  said,  all  sexual  laws 
ought  to  be  wiped  off  the  statute-book;  but 
the  Hungarian  law  which  was  in  force  until 
1849,  when  the  German  law  was  introduced 
into  Hungary,  is  a comment  on  the  absurdity 
of  the  English. 

u No  countrywoman  of  mine,”  said  a proud 
sister  of  Kossuth,  “ would  ever  submit  to  such 
a marriage  settlement  as  is  common  in  Eng- 
land.” In  Hungary,  inherited  property  could 
not  be  devised  by  will,  and  all  unmarried  wo- 
men were  considered  minors.  As  soon  as  she 
married,  a woman  came  of  age,  and  into  the 
full  control  of  her  estates.  She  could  make 
a will,  and  sign  deeds ; and  was  not  respon- 
sible for  her  husband’s  debts  or  the  family  ex- 
penses. As  a widow,  she  was  guardian  of  her 
children,  and  administrator  on  her  husband’s 
property.  So  long  as  she  bore  his  name,  she 
could  exercise  all  his  political  rights.  She  could 


68 


THE  ENGLISH  COMMON  LAW. 


vote  in  the  county  elections,  and  for  deputies 
to  the  Diet.  Trained  up  under  such  a law, 
what  could  the  Hungarian  woman  think  who 
found  herself  for  the  first  time  in  the  power 
of  the  English  law? 

Among  the  refugees  whom  the  misfortunes 
of  a leading  Hungarian  family  drove  to  these 
shores  was  one  woman  of  the  highest  natural 
gifts,  the  best  social  station.  She  was  mar- 
ried to  a man,  handsome,  accomplished,  and 
reckless,  but  hardly  patriotic  enough  to  have 
need  to  fly  with  her.  In  the  city  of  New 
York  she  opened  a boarding-house  of  the 
highest  class,  by  which  she  strove  to  support 
herself  and  her  children.  A fascinating  host- 
ess, a skilful  manager,  she  succeeded,  as  might 
be  expected.  Soon  her  improvident  husband 
followed  her.  At  first,  he  did  not  attempt  to 
annoy  her ; but,  in  time,  some  one  was  found 
cruel  enough  to  expound  to  him  the  English 
common  law.  He  stared,  refused  to  believe  ; 
but  finally  entered  his  wife’s  house,  seized  her 
earnings,  compelled  her  boarders  to  pay  their 


THE  ENGLISH  COMMON  LAW. 


69 


money  into  his  hands,  stripped  her  of  all 
power  to  pay  her  rent  and  provide  for  her 
family,  and  then  took  himself  off,  enraptured, 
doubtless,  with  his  brief  experience  of  Eng- 
lish and  American  liberty.  Stripped  of  peace, 
position,  and  property,  the  injured  wife  had 
no  longer  courage  to  struggle.  In  underhand 
ways,  to  evade  the  unjust  law,  her  personal 
friends  settled  her  upon  a little  farm,  where 
her  shattered  hopes  found  a short  repose. 

A few  years  ago,  an  American  woman  of 
captivating  address  gained  great  reputation 
in  Paris  as  a milliner.  She  had  a profligate 
husband,  whom  she  invited  to  tea  every  Sun- 
day, supplying  him  at  that  time  with  a sum 
for  his  weekly  expenses.  In  an  evil  day,  se- 
duced by  promises  of  high  patronage,  she 
went  to  London.  She  was  very  successful ; 
but  in  a few  months  her  husband  surprised 
her,  seized  all  she  possessed,  and,  turned  adrift 
on  the  streets,  she  went  back  to  a country 
where  the  law  would  protect  her  industry. 
Marriage  has  been  sought  only  to  legalize  a 


70 


THE  ENGLISH  COMMON  LAW. 


theft,  — to  apply  the  words  of  Wendell  Phil- 
lips, when  u union  was  robbery”  A respectable 
servant,  who  had  laid  by  a considerable  sum, 
wras  sought  in  marriage  by  an  apparently  suit- 
able person.  On  the  day  before  the  marriage, 
she  put  her  bank-book  into  his  hands.  After 
the  ceremony,  he  said  to  her,  “ I am  not  well 
in  health,  and  do  not  feel  equal  to  supporting 
a family : you  had  better  go  back  to  service.7’ 
Naturally  indignant,  she  responded,  “ Give 
me,  then,  my  bank-book.77  — “lam  too  feeble 
to  spare  the  money,77  he  replied.  She  went 
back  to  service,  and  has  never  seen  him  since  ; 
but,  of  course,  she  has  been  often  obliged  to 
change  her  name  and  residence  to  protect 
herself  from  a long  succession  of  extortions. 

We  see  thus,  that  if  a woman  is  able  to 
conquer  her  fate,  and  to  gain  a livelihood  in 
spite  of  a dissolute  or  incompetent  husband, 
her  home  is  not  her  own.  Her  husband’s 
folly  may,  at  any  moment,  deprive  her  chil- 
dren of  bread. 

I have  said  that  there  was  no  woman  so 


THE  ENGLISH  COMMON  LAW. 


71 


pitiable  as  an  heiress.  I said  it  advisedly.  I 
thought  of  the  long  persecution  she  must 
bear  from  unwelcome  suitors,  — of  all  appre- 
ciation of  her  personality,  ever  so  lovely  or 
gifted  or  individual,  sunk,  as  it  must  be,  in  the 
mire  of  her  money. 

Mrs.  Reid  says,  justly,  that  this  money  is 
not  so  much  her  own  as  a perquisite  attached 
to  her  person  for  the  benefit  of  her  future 
husband;  the  larger  portion  of  which  will 
eventually  pass  to  his  heirs,  whether  of  her 
blood  or  not.  If  forced  from  ill  treatment  to 
leave  his  roof,  the  law  will  return  her  but  a 
scanty  pittance. 

The  nature  of  the  law  itself,  and  that  esti- 
mate of  woman  on  which  it  is  based,  are  so 
identical,  that  we  are  compelled,  as  we  turn 
over  its  pages,  to  treat  these  two  points  as  one. 

“ For  one-half  the  human  race/7  said  Mrs. 
Reid  years  ago,  “the  highest  end  of  civiliza- 
tion is  to  cling  like  a weed  upon  a wall : 77  a 
curious  instance  of  the  power  that  the  use  of 
language  has  over  a fact.  There  is  nothing 


72 


THE  ENGLISH  COMMON  LAW. 


captivating  in  clinging  like  a “ weed  to  a wall;  ” 
but  most  women  are  satisfied  to  hang  like  the 
“ vine  about  the  oak.” 

It  is  a great  misfortune,  that  this  estimate 
of  woman  not  only  governs  the  courts  in  their 
decisions,  but  enters  into  and  moulds  all  the 
movements  of  society.  Such  an  estimate 
leads  to  constant  contradictions ; being,  as  it 
is,  directly  the  opposite  of  the  fact  in  so  many 
cases,  and  of  the  Divine  Will  in  all.  In  a book 
on  woman  recently  published  by  a lawyer  in 
England,  I found  a pithy  paragraph  to  this 
point,  concluding  some  observations  on  the 
comparative  longevity  of  the  sexes  : “ The 
wife,”  he  says,  “fitly  survives  the  husband , 
both  to  take  care  of  his  premature  infirmity, 
and  to  consummate  the  rearing  of  their  off- 
spring ” ! - — a creative  effort  of  the  imagina- 
tion which  certainly  entitles  the  writer  to  the 
laurels  of  the  century. 

One  reason  that  the  wages  of  women  are 
kept  down  is,  that,  for  the  most  part,  women 
do  not  begin  to  labor  early;  do  not  devote 


THE  ENGLISH  COMMON  LAW. 


73 


themselves  in  youth  to  any  trade  or  profession, 
so  as  to  compete  with  men  who  have.  The 
plodding  and  steady  habits  of  the  man  of 
business,  he  has  acquired  in  his  early  years ; 
and  they  are  developed  by  the  fact,  that  he  is 
sole  master  of  what  he  can  earn,  and  can  dis- 
pose of  it  as  he  thinks  proper : but  his  wife 
has  been  brought  up  in  no  such  school,  — has 
no  such  motive  to  industry.  Should  she  toil 
on  for  ever,  she  cannot  possess  what  she  ac- 
quires, nor  lay  out  the  smallest  part  of  it, 
without  another’s  leave.  Even  when  man  says 
to  her  with  the  sanction  of  the  church  and  in 
the  presence  of  God,  u With  all  my  worldly 
goods  I thee  endow,”  it  means  only  that  she 
is  invited  to  enjoy,  not  possess  them.  This 
estimate  of  her  rights,  her  position,  and  her 
ability,  made  manifest  in  every  law-book,  in 
the  church  itself,  and  obvious  in  every  social 
form,  discourages  her  whenever  she  would 
devote  herself  to  any  lucrative  employment ; 
so  that  it  is  only  in  desertion  and  despair,  for 
the  most  part,  that  she  becomes  a laborer. 


74 


THE  ENGLISH  COMMON  LAW. 


She  is  not  always  conscious  of  this  discou- 
ragement. She  quiets  the  Cerberus  within 
by  a three-times  repeated  “ It  is  not  proper/’ 
without  pausing  to  analyze  the  conventional 
instinct.  Here  we  find  the  real  significance 
of  the  proverb,  “A  man  of  straw  is  worth  a 
woman  of  gold  ; ” for  the  “ man  of  straw  ” is, 
at  least,  worth  such  money  as  he  may  here- 
after earn,  which  the  “ woman  of  gold”  is  not. 

We  hear  a great  deal  about  laws  for  the 
'protection  of  women ; but  we  cannot  urge  too 
often  the  remark  of  James  Davis  in  his  Prize 
Essay  of  1854,  “that  all  early  legislation  for 
woman  was  founded,  not  on  her  own  rights, 
but  on  those  of  her  husband  and  children,  and 
the  State  over  her” 

When  one  remembers  that  the  “ seat  of  the 
law  is  the  bosom  of  God,”  it  strikes  one 
strangely,  that  moral  consequences  to  charac- 
ter have  so  little  to  do  with  what  one  may 
call  “ sexual  legislation.” 

In  speaking  of  the  frequenting  of  disrepu- 
table houses,  neither  Montesquieu,  nor  Dr. 


THE  ENGLISH  COMMON  LAW. 


75 


Wood  in  his  “ History  of  Civil  Law/7  finds  a 
single  word  to  say  as  to  the  moral  degradation 
of  the  race,  or  the  special  degradation  of 
woman  involved  in  it,  but  both  grow  eloquent 
concerning  the  ruin  of  the  State.  It  requires 
a sounder  mode  of  thinking  than  most  men 
possess  to  see  the  relation  between  the  ruin  of 
the  State  and  their  own  bad  habits,  the  loss 
of  one  man’s  purity.  Thus  the  laws  concern- 
ing adultery,  or  divorce  for  that  cause,  bring 
the  heaviest  penalties,  social  and  legal,  upon 
the  head  of  an  offending  woman.  The  legal 
excuse  for  this  positive  injustice  is  the  safety 
of  the  family  and  the  State,  — the  great  crime 
of  imposing  upon  a family  false  representa- 
tives of  its  name  and  honor ; but  a woman’s 
brain  and  conscience  are  too  clear  to  rest  in 
this  masculine  decision. 

If  a man  cannot  bring  a false  representative 
into  his  own  family , he  can  carry  it  into  his 
neighbor’s,  when  his  profligate  life  violates 
the  social  compact ; and,  as  to  his  own  family, 
his  vices  may  injure  it  far  more  than  the  infi- 


76 


THE  ENGLISH  COMMON  LAW. 


delity  of  his  wife.  At  the  worst?  her  miscon- 
duct will  only  bring  into  the  shelter  of  his 
home  a child  who  grows  up  protected  socially 
by  her  fraud;  but,  if  lie  choose  to  u spend  his 
substance  in  riotous  living/7  his  wife  and  chil- 
dren may,  while  the  law  gives  him  exclusive 
right  to  their  common  property,  be  deserted, 
or  driven  from  their  homes,  to  make  room  for 
those  who*  are  the  companions  of  his  guilt. 
It  is  quite  possible,  it  will  be  seen,  therefore,  to 
show  another  side  to  this  matter,  in  no  better 
light  than  that  of  expediency.  One  canton  of 
Switzerland  (the  Canton  Glarus)  possesses  laws 
in  regard  to  such  matters,  in  marked  contrast 
to  those  of  the  whole  civilized  world.  The 
consequence  is,  that  the  falsehood  and  crime 
so  common  elsewhere  are  here  unknown.* 


* “ A man  who  is  guilty  of  adultery  is  branded  by  public 
opinion  as  a forger  or  bigamist  is  elsewhere,  and  is  not  eligible  to 
public  office  during  the  whole  of  his  life ; which,  under  such  a 
government,  is  the  greatest  punishment  that  can  be  inflicted.  A 
man  who  breaks  his  promise  of  betrothal,  or  who  in  any  way 
betrays  a woman  to  mortification  and  shame,  is  heaped  with  the 
same  scorn  that  women  receive  elsewhere.  The  woman  who  is 
betrayed  is  censured;  but  the  man  is  henceforth  an  outcast.”  — 
Coltayes  of  the  Alps,  p.  288. 


THE  ENGLISH  COMMON  LAW. 


77 


“ Perhaps  it  would  be  just/7  says  Poynter 
on  “ Marriage  and  Divorce/7  in  1824,  — “per- 
haps it  would  be  just,  that  where  the  husband 
violates  the  matrimonial  compact,  and  the 
property  originally  belonged  to  the  wife,  he 
should  give  back  the  whole  of  it.  Courts, 
however,  have  never  gone  that  length.77 

One  would  think,  nevertheless,  that  hus- 
bands themselves  might  go  that  length,  and 
that  men  who  aspire  to  the  credit  of  decency 
would  be  ashamed  to  eat  the  bread  of  her 
they  have  betrayed  and  wounded.  How  is 
it  that  they  have  deceived  themselves  from 
the  beginning,  and  have  fancied  that  God 
requires  of  woman  a fidelity  and  purity  that 
was  not  of  the  smallest  consequence  to  them- 
selves? 

In  the  late  debate  in  Parliament  on  the  New 
Divorce  Bill,  when  a member  objected  to  the 
introduction  of  a clause  equalizing  the  relief 
of  divorce  to  both  sexes,  he  asked,  “ If  this 
clause  were  adopted,  I should  like  to  know 
how  many  married  men  there  would  be  in  this 


78 


THE  ENGLISH  COMMON  LAW. 


house ?77  He  was  answered  by  shouts  of 
laughter. 

Would  these  men  have  laughed,  think  you, 
if  they  had  been  asked  how  many  pure  wives 
could  be  found  in  their  family  circles  ? and, 
if  not , would  it  have  been  because  they  were 
capable  of  estimating  the  value  of  womanly 
virtue  ? No : he  canqot  estimate  that  who  has 
never  known  the  worth  of  manly^p-^ity.  The 
spectres  of  illegitimacy  and  civil  ruin  are  what 
would  stare  them  in  the  face,  and  turn  their 
very  lips  so  white. 

In  France,  says  the  “ Westminster  Review/7 
fidelity  on  the  part  of  the  husband  is  consi- 
dered a sort  of  imbecility.  What  is  thought 
of  it  in  England  ? Does  this  scene  in  Parlia- 
ment, printed  for  all  our  girls  to  read,  suggest 
any  higher  view? 

“ The  frequenting  of  disreputable  places/7 
says  Davis,  “was  once  an  indictable  offence  in 
a man ; but  that  is  now  obsolete.77  Obsolete  ? 
and  why?  A lawyer  once  told  me,  that  the 
most  obscene  publication  he  had  ever  read 


THE  ENGLISH  COMMON  LAW. 


79 


was  a book  upon  divorce.  I can  well  believe 
it.  I thought  I knew  how  corrupt  modern 
society  could  be  ; but  I did  not  know  how  un- 
soundness had  darted  to  its  very  core,  till  I 
began  to  read  law,  and  to  understand  the 
estimate  which  that  puts  upon  woman  and 
chastity. 

When  I think  of  these  things,  I wonder 
that  this  platform  is  not  thronged  with  the 
ghosts  of  dead  and  ruined  women,  crowding 
here  to  second  my  appeal  to  beseech  you  to 
grant  human  justice,  to  require  human  vir- 
tue ! And  all  this  sin  is  sheltered  under  the 
plea  of  protection  ! “ How  many  delicious 

morsels  I should  miss  if  it  were  not  for  thy 
care,  0 most  excellent  jackal ! 77 

u Lawyers,77  says  Johnson  in  1777,  — “ law- 
yers often  pay  women  the  high  compliment  of 
supposing  them  proof  against  all  temptations 
combined.77 

Certainly,  whatever  the  laivyers  may  do,  the 
law  itself  confidently  expects  of  them  a super- 
human strength.  It  gives  them  no  defence 


80 


THE  ENGLISH  COMMON  LAW. 


but  immaculateness.  It  offers  them  no  shel- 
ter but  God’s  temple,  no  robe  but  spotless 
ermine ; and  then,  turning  the  page,  it  says, 
“ A husband  is  expected  to  be  vigilant,  and  so 
prevent  his  own  dishonor : ” as  if  his  vigilance 
and  quick-wittedness  could  save  the  woman 
whom  his  love  had  not  blessed. 

Ah  ! these  lawyers  are  but  blind  guides, 
after  all.  Centuries  of  discomfiture  and  de- 
feat have  not  sufficed  to  teach  them  how  little 
security  is  to  be  found  in  suspicion  and  scep- 
ticism. If  I do  not  want  my  groceries  stolen, 
I must  leave  my  storeroom  open.  The  very 
servant  who  would  not  scruple  to  pick  my 
locks  will  know  better  than  to  pick  that  of 
her  own  heart.  “A  thorough-bred  woman,” 
says  Mrs.  Reid,  “ is  good  only  so  far  as  her 
husband  suggests  and  allows ; ” and,  so  long 
as  this  is  the  standard,  woman’s  duplicity  may 
well  match  man’s  utmost  expectation,  and 
there  is  not  a privilege  of  his  open  vice  that 
she  will  not  secure  by  stealth. 

There  was  a time  when  all  the  women  at 


THE  ENGLISH  COMMON  LAW. 


81 


the  court  of  France  blushed  for  one  of  their 
number  who  unluckily  made  use  of  a hard 
word  in  a proper  place.  In  like  manner,  the 
woman  who  reads  law  blushes  to  find  herself 
even  tolerably  sincere  and  modest.  It  is  not 
expected  of  her.  Why  has  she  never  done 
any  of  the  bad  things  the  law  so  confidently 
predicts  ? 

All  thinking  people  must  see  how  easily  we 
turn  from  the  consolidated  law  of  ages,  with  its 
false  views,  its  untrue  estimate  of  woman  and 
duty,  to  the  question  of  the  right  of  suffrage. 

In  1848  and  1850,  we  used  to  hear  a great 
deal  of  three  objections  to  conferring  this 
right  upon  women  : — 

1st,  Its  incompatibility  with  household  care  and 
the  duties  of  maternity. 

2d,  Its  hardening  effect  on  the  character ; poli- 
tics not  being  fit  for  woman. 

3d,  The  inexpediency  of  increasing  competition 
in  the  already  crowded  fields  of  labor  and  office. 

To  these  three  points  we  gave  short  and 
summary  answers  : — 


6 


82 


THE  ENGLISH  COMMON  LAW. 


1st,  There  are  a great  many  women  who  will 
never  be  mothers  and  housekeepers ; and,  if  there 
were  not,  suffrage  is  no  more  incompatible  with 
maternity  and  housekeeping  than  it  is  with  mer- 
cantile life  and  the  club-room. 

2d,  If  it  hardens  women,  it  will  harden  men; 
and  the  politics  which  are  not  fit  for  her  are  not  fit 
for  him,  nor  will  they  become  so  till  her  presence 
gives  men  a motive  to  purify  them.* 

3d,  At  the  worst,  competition  could  only  go  so 
far,  that  a man  and  a woman  would  earn  as  little 
together  as  the  man  now  does  alone.  This  would 
be  better  than  the  present  condition  of  things  ; for 
they  would  then  be  equal  partners,  and  no  longer 
master  and  slave.  Both  would  work,  and  neither 
need  pine. 

These  answers,  whether  logical  or  not,  have 
practically  silenced  the  objections.  We  hear 
no  more  of  this  nonsense.  But,  on  the  other 
hand,  a respectable  daily  says,  “ As  to  the  ab- 
stract right  of  a woman  to  vote  because  she 
is  a human  being  and  pays  taxes,  there  is  no 
such  abstract  right  in  any  human  being,  male 
or  female  : the  extent  of  the  elective  franchise 
is,  and  must  ever  be,  limited  by  considerations 
of  expediency.” 


THE  ENGLISH  COMMON  LAW. 


83 


Then  a distinguished  review  goes  on  to 
say,  u that  while  the  question  of  suffrage 
stands  where  it  now  does,  so  unsettled  that 
every  Congress  and  Parliament  discuss  it 
anew,  we  are  glad  that  any  thing  should  pre- 
vent the  discussion  as  to  conferring  on  woman 
a duty,  the  grounds  of  which  are  very  vague 
and  undetermined  so  far  as  regards  men ; ” 
and  a critic  of  Rosa  Bonheur’s  magnificent 
pictures  advises  the  “ sad  sisterhood  of  wo- 
men’s-riglits  advocates  to  visit  the  exhibition, 
and  sigh  to  think  how  much  one  silent  woman’s 
hand  outvalues  for  their  cause  the  pathos 
and  the  jeers  of  their  unlovely  platform.” 

Such  remarks  as  these  are  easily  met.  To 
the  first  objector,  who  declares,  although  the 
professed  advocate  of  a republican  govern- 
ment, that  there  is  no  such  thing  as  any  abstract 
right  to  vote,  we  reply,  that  in  this  particular 
discussion  we  don’t  care  about  abstract  rights : 
what  we  want  is  our  own  share  of  the  tangible 
acknowledged  right  which  human  governments 
confer.  If  in  England  this  right  depends  on 


84 


THE  ENGLISH  COMMON  LAW. 


a property  qualification,  then  we  claim  that 
there  the  property  qualification  shall  endow 
woman  as  well  as  man  with  the  right  of  suf- 
frage. If  in  America  it  depends  upon  an 
inalienable  right  to  life,  liberty,  and  the  pur- 
suit of  happiness,  then  we  demand  that  our 
government  recognize  woman  as  so  endowed, 
and  receive  her  vote. 

To  the  reviewer  we  say  also,  If  the  grounds 
of  suffrage  are  vague  and  undetermined  in 
theory , they  may  remain  so,  so  far  as  our  inter- 
ference is  concerned.  What  we  ask  to  share 
is  the  steady  right  to  vote,  which  has  been 
actually  granted,  and  never  disputed,  since 
our  government  was  founded  ; and  sufficiently 
pressed,  we  might  add,  that,  if  there  is  ever 
any  chance  of  limiting  the  right  of  suffrage, 
we  shall  do  all  we  can  to  secure  its  depend- 
ence on  a certain  amount  of  education,  in 
preference  to  a certain  amount  of  wealth. 

As  to  the  art  critic,  we  thank  him  for  call- 
ing us  the  “ sad  sisterhood.”  We  should  be 
sorry  to  be  otherwise,  when  pleading  for  wo- 


THE  ENGLISH  COMMON  LAW. 


85 


men  before  men ; sorry  to  find  matter  for 
jesting  in  those  purlieus  of  St.  Giles  and 
Five  Points  and  the  Black  Sea,  beating  up 
remorselessly  against  these  very  doors,  which 
lie  at  the  very  heart  of  our  effort.  As  to  the 
matter  of  going  to  see  the  Horse  Fair  and 
the  Highland  Cattle,  it  will  probably  be  found 
to  be  a fact,  that,  in  every  city  where  those 
great  pictures  have  been  exhibited,  u women's- 
rights  women  ” have  been  their  earliest  visit- 
ors ; and,  standing  before  the  canvas,  have 
thanked  God,  with  an  earnestness  the  art 
critic  never  dreamt  of,  for  that  silent  woman’s 
hand,  that  glorious  woman’s  life.  It  was  not 
necessary  for  him  to  remind  us  of  what  Solo- 
mon had  said  so  much  better  three  thousand 
years  ago ; namely,  that  “ speech  is  silvern, 
and  silence  is  golden.”  Nathless,  silver  is 
still  current  in  all  markets ; and,  God  willing, 
we  are  not  ashamed  to  use  it. 

We  intend  to  claim,  in  words,  the  right  of 
suffrage  ; and  why  ? 

Turning  from  that  wretched  estimate  of 


86 


THE  ENGLISH  COMMON  LAW. 


woman,  and  of  marfls  duty  toward  woman, 
which  the  law-books  have  just  offered  us, 
we  claim  the  right  of  suffrage,  because  only 
through  its  possession  can  women  protect 
themselves  ; only  through  its  exercise  can 
both  sexes  have  equality  of  right  and  power 
before  the  law.  Whenever  this  happened, 
character  would  get  its  legitimate  influence ; 
and  it  is  just  possible  that  men  might  become 
rational  and  virtuous  in  private,  if  association 
with  women  compelled  them  to  seem  so  in 
public. 

It  is  noticeable,  that  every  man  disclaims 
at  his  own  hearth,  and  in  the  presence  of  wo- 
men, whatever  there  is  of  disgraceful  apper- 
taining to  political  or  other  public  meetings. 
Somebody  must  be  responsible  for  these 
things  ; and  yet,  if  we  are  to  believe  wit- 
nesses, nobody  ever  does  them.  The  bare 
fact  of  association  must  take  all  the  blame. 

The  laws  already  existing  prove  conclu- 
sively to  woman  herself,  that  she  has  never 
had  a real  representative.  What  she  seeks 


THE  ENGLISH  COMMON  LAW. 


87 


is  to  utter  her  own  convictions,  so  that  they 
shall  redeem  and  save,  not  merely  her  own 
sex,  but  the  race. 

That  the  right  of  suffrage  would  be  a pro- 
tection to  women,  we  see  from  this  fact,  that 
it  would  at  once  put  an  end  to  three  classes 
of  laws : — 

I.  Those  that  protect  her  from  violence. 

II.  Those  made  to  protect  her  from  fraud. 

III.  Those  that  protect  society  from  the 
passions  of  both  sexes. 

The  moment  woman  began  to  exercise  this 
right,  I think  we  should  see  moral  significance 
streaming  from  every  statute.  We  should  no 
longer  hear  that  seduction  was  to  be  sued 
as  “ loss  of  service  : ” it  would  become  loss  of 
honor  to  more  than  one.  We  should  no  longer 
hear  that  consent  or  temptation  excused  it : 
we  should  find  that  God  demanded  chastity 
of  both  sexes,  and  had  made  man  the  guard- 
ian of  his  own  virtue.  We  should  find,  that,  if 
its  punishment  admitted  of  degrees,  it  should 
be  heaviest  where  a man  committed  it  in  defi- 
ance or  abuse  of  a positive  trust. 


THE  ENGLISH  COMMON  LAW. 


Let  us  look  at  a single  decision  in  the  light 
of  these  principles.  Let  us  take  the  case  of 
Harris  versus  Butler,  reported  in  the  notes 
to  Davis’s  Prize  Essay. 

A man  named  Harris  had  apprenticed  his 
daughter  to  a milliner  named  Butler,  paying 
as  an  entrance-fee  a sum  equivalent  to  a hun- 
dred and  fifty  dollars.  After  a short  time,  the 
girl  was  seduced  by  her  mistress’s  husband. 
She  became  seriously  ill,  and  was  returned 
to  her  father,  who  lost  not  only  his  hundred 
and  fifty  dollars,  but  all  the  benefits  of  her 
apprenticeship,  and  was  obliged  to  provide 
her  writh  board,  medicine,  and  nursing. 

Why  the  father  became  liable  for  the  care 
of  his  child  under  such  circumstances  does 
not  appear.  Common  sense  would  suggest 
that  the  court  might  have  required  this  at  the 
hands  of  the  Butlers ; but,  unfortunately,  law 
has  very  little  to  do  with  common  sense. 

The  father  brought  an  action  against  But- 
ler : but  the  defence  urged,  that  he  could  only 
sue  for  “ loss  of  service  ; ” that  her  “ services  ” 


THE  ENGLISH  COMMON  LAW. 


89 


were  not  his  after  she  was  apprenticed  to  Mrs. 
Butler  ; that  Mrs.  Butler  and  her  husband 
were  “ one  person  in  law ; ” and  that,  if  But- 
ler chose  to  deprive  himself  of  her  services 
for  his  own  ends,  the  law  had  no  remon- 
strance to  make,  no  redress  to  afford. 

The  prosecution  urged,  that  the  “ care  of 
morals  ” was  one  of  the  duties  involved  in  the 
very  system  of  apprenticeship ; but  the  court 
denied  the  claim,  unless  it  were  distinctly  set 
forth  on  the  articles  signed. 

This  is  but  one  case  out  of  hundreds  acces- 
sible to  you  all.  The  moment  woman  becomes 
a law-maker,  such  records  will  be  wiped  out 
of  your  life.  They  may  make  a certain  sort  of 
show  in  your  law-books ; but  what  have  the 
unbending  laws  of  God  to  do  with  this  “ one 
person  in  law,”  this  plea  for  “ loss  of  service  ”? 
At  the  eternal  bar,  no  man  will  dare  to  echo 
that  plea,  no  judge  rehearse  that  verdict. 
Such  law  rests  not  in  the  “ bosom  of  God ; ” 
its  voice  chimes  not  in  keeping  with  the  har- 
mony of  his  countless  spheres. 


90 


THE  ENGLISH  COMMON  LAW. 


You  object  to  seeing  women  in  Parliament. 
English  lords  tell  us  that  delicate  matters  have 
to  be  discussed  there,  with  which  women 
would  hardly  care  to  meddle.  The  natural 
growth  of  society  opens  the  area  of  all  proprie- 
ties. Delicate  matters  come  to  be  discussed 
in  most  households ; and  it  is  reasonable  to 
suppose  that  they  would  be  more  delicately 
and  rationally  discussed  if  they  were  some- 
times publicly  met.  It  is  my  opinion,  that  no 
subject  is  fit  for  discussion  at  all  that  cannot 
be  discussed  between  men  and  women.  It  is 
separating  the  sexes  in  such  cases,  that  opens 
the  way  to  indecency.  All  great  themes  of 
human  thought  and  human  virtue,  men  and 
women  ought  to  be  trained  to  consider  seri- 
ously together ; and  where  better  than  in  the 
Congress  or  the  Parliament  ? Think  only  of 
the  debate  which  I have  quoted  on  the  New 
Divorce  Bill ! Could  such  a scene  have  taken 
place  in  the  presence  of  women?  Eecur  to 
the  trial  of  Queen  Caroline ; or  to  that  of  the 
Duke  of  York,  when  accused  of  conniving  at 


THE  ENGLISH  COMMON  LAW. 


91 


the  corrupt  sale  of  military  commissions  by 
his  mistress,  Mrs.  Clarke. 

Under  date  of  Feb.  16,  1809,  Freemantle 
writes : u The  scene  which  is  going  on  in  the 
House  of  Commons  is  so  disgusting,  and  at 
the  same  time  so  alarming,  that  I hardly  know 
how  to  describe  it  to  you.  Of  course,  while 
this  ferment  lasts  (and  God  knows  when  it  is 
to  end),  no  attention  will  be  paid  to  the  bush 
ness  of  the  country.” 

In  these  instances,  high-bred  men  showed  a 
taste  for  low  scandal ; battening  day  after  day 
on  the  same  loathsome  details,  which  the  pre- 
sence of  a single  woman  must  have  checked. 
Here  was  a woman,  too,  this  very  Mrs.  Clarke, 
somewhat  debased  and  hardened,  who  had 
never  a seat  in  Parliament,  who  had  never 
dreamed  of  exercising  the  right  of  suffrage, 
yet  was  quite  equal,  as  the  evidence  showed, 
to  any  political  venality,  striving  in  her  way  to 
outdo  the  very  jobbers  of  Downing  Street  it- 
self ! Why  should  elections  be  scenes  of 
tumult,  or  parliaments  free  fields  for  imbecile 


92 


THE  ENGLISH  COMMON  LAW. 


improprieties  ? Why  should  not  a peeress  feel 
herself  as  properly  placed  among  her  peers  as 
the  Queen  seated  at  her  Council  ? 

We  are  not  likely  to  withdraw  our  claim 
while  it  is  sustained  by  such  a man  as  John 
Stuart  Mill,  who,  in  his  late  essay  on  “ Political 
Representation/7  advises  this  extension  of  the 
suffrage:  “All  householders,  without  distinc- 
tion of  sex/7  he  says,  “ might  be  adopted  into 
the  constituency,  on  proving  to  the  registrars 
officer  that  they  have  fifty  pounds  a year,  and 
can  read,  write,  and  calculate.77 

“ The  almost  despotic  power  of  husbands 
over  wives/7  Mr.  Mill  adds  in  his  “ Essay  on 
Liberty/7  “ needs  not  to  be  enlarged  upon 
here,  because  nothing  more  is  needed  for  the 
complete  removal  of  the  evil  than  that  wives 
should  have  the  same  rights,  and  should  re- 
ceive the  protection  of  the  law  in  the  same 
manner,  as  all  other  persons ; and  because,  on 
this  subject,  the  defenders  of  established  injus- 
tice do  not  avail  themselves  of  the  plea  of 
liberty,  but  stand  forth  openly  as  the  cham- 
pions of  power.77 


THE  ENGLISH  COMMON  LAW. 


93 


The  dedication  of  this  “ Essay  on  Liberty  ” 
ought  to  be  preserved  in  these  pages ; for  it  is 
full  of  historic  significance  : — 

u To  the  beloved  and  deplored  memory  of  her 
who  was  the  inspirer,  and  in  part  the  author,  of  all 
that  has  been  best  in  my  writings  ; the  friend  and 
wife,  whose  exalted  sense  of  truth  and  right  was 
my  strongest  incitement,  and  whose  approbation 
was  my  chief  reward,  — I dedicate  this  volume. 

Like  all  that  I have  written  for  many  years,  it 
belongs  as  much  to  her  as  to  me  ; but  the  work,  as 
it  stands,  has  had,  in  a very  insufficient  degree,  the 
inestimable  advantage  of  her  revision  ; some  of 
the  most  important  portions  having  been  reserved 
for  a more  careful  re-examination,  which  they  are 
now  never  destined  to  receive.  Were  I but  capa- 
ble of  interpreting  to  the  world  one-half  the  great 
thoughts  and  noble  feelings  which  are  buried  in 
her  grave,  I should  be  the  medium  of  a greater 
benefit  to  it  than  is  ever  likely  to  arise  from  any 
thing  that  I can  write,  unprompted  and  unassisted 
by  her  all  but  unrivalled  wisdom.” 

I said  that  this  dedication  ought,  for  many 
reasons,  to  be  preserved  in  these  pages.  What 
is  better  fitted  than  such  a tribute  to  check 
the  jeering  scepticism  of  the  crowd  as  to  the 


94 


THE  ENGLISH  COMMON  LAW. 


ability  and  purity  of  the  sex?  What  could 
lay  a better  foundation  for  a better  estimate 
on  the  part  of  the  law  ? Necker,  in  his  report 
to  the  French  Government,  publicly  awarded 
to  his  wife  the  credit  of  the  recent  retrench- 
ment in  the  expenses  of  the  Government ; 
Bowditch  dedicated  his  translation  of  the 
“ Mecanique  Celeste  ” to  the  wife  who  aided 
him  to  prepare,  and  by  her  self-denial  opened 
a way  for  him  to  publish  it : but  where  in  the 
records  of  the  past  shall  we  find  such  a tri- 
bute offered  by  such  a man,  as  honorable  in 
itself  to  the  first  political  economist  of  our 
time  as  it  is  a gracious  adornment  to  the 
name  of  the  woman  he  loved?  Does  it  not 
promise  in  itself  the  dawning  of  a brighter 
future  for  woman,  when  no  “ sad  sisterhood  ” 
shall  be  needed  either  to  proclaim  woman’s 
rights  or  redress  her  wrongs?* 


* In  reprinting  for  his  collected  works  Mrs.  Mill’s  article  on 
“ The  Enfranchisement  of  Women,”  Mr.  Mill  more  lately  says, 
“ All  the  more  recent  of  these  papers  were  the  joint  production 
of  myself,  and  one  whose  loss,  even  in  a merely  intellectual 
point  of  view,  can  never  be  repaired  or  alleviated.  But  the 


THE  ENGLISH  COMMON  LAW. 


95 


About  two  years  since  (1858),  the  Stock- 
holm “ Aftonblad,”  a Swedish  newspaper, 
stated  that  “the  authorities  of  the  old  uni- 
versity-town of  Upsal  had  granted  the  right 


following  essay  is  hers  in  a peculiar  sense ; my  share  in  it  being 
little  more  than  that  of  editor  or  amanuensis.  Its  authorship 
having  been  known  at  the  time,  and  publicly  attributed  to  her, 
it  is  proper  to  state,  that  she  never  regarded  it  as  a complete 
discussion  of  the  subject  which  it  treats  of;  and,  highly  as  I esti- 
mate it,  I would  rather  it  remained  unacknowledged,  than  that 
it  should  be  read  with  the  idea,  that  even  the  faintest  image  can 
be  found  in  it  of  a mind  and  heart,  which,  in  their  union  of  the 
rarest,  and  what  are  deemed  the  most  conflicting  excellences, 
were  unparalleled  in  any  human  being  that  I have  known  or 
read  of.  While  she  was  the  light,  life,  and  grace  of  every  soci- 
ety in  which  she  took  part,  the  foundation  of  her  character  was 
a deep  seriousness,  resulting  from  the  combination  of  the  strong- 
est and  most  sensitive  feelings  with  the  highest  principles.  All 
that  excites  admiration,  when  found  separately,  in  others,  seemed 
brought  together  in  her,  — a conscience  at  once  healthy  and  ten- 
der; a generosity  bounded  only  by  a sense  of  justice,  which 
often  forgot  its  own  claims,  but  never  those  of  others ; a heart  so 
large  and  loving,  that  whoever  was  capable  of  making  the  small- 
est return  of  sympathy  always  received  tenfold;  and,  in  the 
intellectual  department,  a vigor  and  truth  of  imagination,  a de- 
licacy of  perception,  an  accuracy  and  nicety  of  observation,  only 
equalled  by  her  profundity  of  speculative  thought,  and  by  a 
practical  judgment  and  discernment  next  to  infallible.  So  ele- 
vated was  the  general  level  of  her  faculties,  that  the  highest 
poetry,  philosophy,  oratory,  or  art,  seemed  trivial  by  the  side  of 
her,  and  equal  only  to  expressing  some  part  of  her  mind;  and 
there  is  no  one  of  these  modes  of  manifestation  in  which  she 
could  not  easily  have  taken  the  highest  rank,  had  not  her  incli- 


96 


THE  ENGLISH  COMMON  LAW. 


of  suffrage  to  fifty  women  owning  real  estate, 
and  to  thirty-one  doing  business  on  their  own 
account.  The  representative  that  their  votes 
assisted  in  electing  was  to  sit  in  the  House  of 
Burgesses.7’ 


nation  led  her  for  the  most  part  to  content  herself  with  being  the 
inspirer,  prompter,  and  unavowed  co-adjutor,  of  others. 

“ The  present  paper  was  written  to  promote  a cause  which  she 
had  deeply  at  heart;  and,  though  appealing  only  to  the  severest 
reason,  was  meant  for  the  general  reader.  The  question,  in  her 
opinion,  was  in  a stage  in  which  no  treatment  but  the  mo«t 
calmly  argumentative  could  be  useful ; while  many  of  the  strong- 
est arguments  were  necessarily  omitted,  as  being  unsuited  for 
popular  effect.  Had  she  lived  to  write  out  all  her  thoughts  on 
this  great  question,  she  would  have  produced  something  as  far 
transcending  in  profundity  the  present  essay,  as,  had  she  not 
placed  a rigid  restraint  on  her  feelings,  she  would  have  excelled 
it  in  fervid  eloquence. 

“ Yet  nothing  that  even  she  could  have  written  on  any  single 
subject  would  have  given  an  adequate  idea  of  the  depth  and 
compass  of  her  mind.  As,  during  life,  she  detected,  before  any 
one  else  had  seemed  to  perceive  them,  those  changes  of  time 
and  circumstances,  which,  ten  or  twelve  years  later,  became  sub- 
jects of  general  remark ; so  I venture  to  prophesy,  that,  if  mankind 
continue  to  improve,  their  spiritual  history  for  ages  to  come  will 
be  the  progressive  working  out  of  her  thoughts,  and  the  realiza- 
tion of  her  conceptions.” 

Such  tributes,  borne  by  noble  men  to  noble  women,  are  so 
frequently  hidden  away  in  the  heavy  volumes  which  lie  out  of 
ordinary  reach,  that  I take  pleasure  in  bringing  them  to  support 
my  own  plea;  and  I only  wish  I could  as  easily  add  to  that  in 
the  text  the  charming  acknowledgments  of  Alexis  de  Toeque- 
ville  to  his  wife.. 


THE  ENGLISH  COMMON  LAW. 


97 


This  is  the  way  the  matter  is  to  begin.  By 
and  by,  the  interests  of  labor  and  trade  will 
force  the  authorities  of  Bristol  and  Manches- 
ter, Newcastle  and  Plymouth,  to  do  the  same 
thing;  and,  after  women  have  gone  on  for 
some  twenty  years  electing  members  of  Par- 
liament, nobody  will  be  surprised  to  find  some 
women  sitting  in  that  body.  u But,”  objects 
somebody,  “ if  that  ever  happens,  we  shall 
have  women  on  juries,  women  pleading  at  the 
bar,  women  as  attorneys,  and  so  on.”  And 
this  is  exactly  what  we  want.  Women  are 
very  much  needed  on  juries,  and  female  crimi- 
nals will  never  be  tried  by  their  peers  until 
they  are  there.  It  is  very  seldom  that  a cri- 
minal case  in  which  women  are  implicated  is 
brought  forward,  when  women  could  not  be  of 
immense  service  in  clearing  up  evidence,  and 
showing  to  the  male  jurors  on  the  panel  the 
absurdity  or  impossibility  of  some  of  the  state- 
ments. The  recent  instance  of  Miss  Shedden, 
who  took  up,  at  a moment’s  notice,  a case  which 
five  well-feed  lawyers  of  distinction  declared 
7 


98 


THE  ENGLISH  COMMON  LAW. 


themselves  unprepared  to  defend,  might  be 
quoted  in  confirmation  of  our  view.  Mr.  Rus- 
sell said  at  the  Liverpool  Assizes  lately,  in  a 
case  which  involved  some  peculiar  evidence, 
“ The  evidence  of  women  is,  in  some  respects, 
superior  to  that  of  men.  Their  power  of 
judging  of  minute  details  is  better  ; and  when 
there  are  more  than  two  facts,  and  something 
be  wanting,  their  intuitions  supply  the  defi- 
ciency.77 And  precisely  the  qualities  which 
fit  them  to  give  evidence,  fit  them  to  sift  and 
test  it.  Women  often  have  occasion  to  smile, 
sometimes  sadly,  sometimes  mischievously,  at 
the  verdicts  passed  upon  their  own  sex.  If 
women  were  to  enter  into  the  practice  of  law, 
or  become  law-makers,  an  immense  change 
would  take  place  in  all  that  relates  to  it.  Ab- 
surd technicalities  would  be  swept  off  its 
papers.  One  hundred  words  would  no  longer 
do  duty  for  one.  Simple,  common-sense  forms 
of  expression  would  take  the  place  of  obso- 
lete Latin  and  Norman- French.  Daylight 
would  be  let  into  indictments,  and  flaws  would 
soon  be  hard  to  find.  No  woman  ever  existed, 


THE  ENGLISH  COMMON  LAW. 


99 


whose  patience  would  stand,  in  cases  where 
meaning  and  law  are  evident,  the  absurd  de- 
lays of  chancery  courts,  or  the  still  absurder 
“ filing  of  objections/7  or  “ defining  of  terms/7 
with  which  lawyers  amuse  a jury,  and  which 
Sir  Leicester  Dedlock,  we  are  told,  considered 
as  the  bulwarks  of  the  English  Constitution. 
This  impatience  of  woman  might  not  be  very 
valuable,  if  she  were  to  legislate  alone ; but, 
controlled  by  man7s  conservative  caution,  it 
will  be  of  the  greatest  service. 

We  are  perpetually  met  by  the  opposition 
extended  to  any  thing  that  is  new.  It  ought 
to  be  our  object,  therefore,  to  show,  that  for 
woman  to  claim  and  possess  the  right  of  suf- 
frage is  by  no  means  a new  thing.  It  is  easy 
to  show  from  the  records  of  most  nations,  that 
women  held  and  exercised  political  power  so 
long  as  power  was  supposed  to  inhere  chiefly 
in  property,  and  so  long  as  women,  either  sin- 
gle or  in  association,  possessed  property  not 
represented  by  men.  Thus  the  suppression 
of  religious  houses  in  England  put  an  end  to 
the  representation  of  abbesses.  “ Truly,  we 


100 


THE  ENGLISH  COMMON  LAW. 


think  more  of  money  than  of  love/7  said  one 
of  the  St.  Simoniens : u we  have  more  conside- 
ration for  bags  of  dollars  than  human  dignity. 
We  emancipate  women  in  proportion  as  they 
are  property-holders ; but;  in  proportion  as 
they  are  women,  our  laws  declare  them  infe- 
rior to  us.77  It  was  only  when  the  republican 
idea  had  crept  to  a certain  extent  into  monar- 
chical governments  themselves,  that  women 
gradually  dropped  a recognized  public  influ- 
ence which  had  depended  on  rank  and  wealth. 
What  men  have  to  do  is,  not  to  reconcile  them- 
selves to  a woman’s  right  to  vote,  — a right 
acknowledged  hundreds  of  years  ago,  which 
is  still  covertly  acknowledged  when  woman 
means  property,  — but  to  reconcile  themselves 
to  the  idea  that  woman  is  a human  being,  and 
that  humanity  has  a right  to  vote.  Wherever 
governments  decide  that  every  individual  has 
a right  to  life,  liberty,  and  the  pursuit  of  hap- 
piness, they  must  admit  the  right  of  the  indi- 
vidual woman  to  vote,  or  deny  the  fact  of  her 
humanity.  There  is  the  dilemma.  In  support 


THE  ENGLISH  COMMON  LAW. 


101 


of  this  statement,  I should  have  shown  you, 
that  in  France,  as  early  as  the  reign  of  Louis 
XIV.,  the  political  rights  of  property  were 
respected  in  the  persons  of  women.  At  the 
present  day,  the  remains  of  the  old  feudal  and 
communal  system  still  secure  a kind  of  politi- 
cal influence  to  certain  women  in  the  provinces, 
and  often  confer  upon  their  husbands  a right 
of  franchise.  In  the  reign  of  Louis  XIV.,  the 
women  who  hawked  and  vended  fish  took  up 
the  business  of  the  u insolvent  fishmongers/7 
and  managed  so  well,  that  they  acquired 
wealth,  married  their  children  into  the  first 
families,  and  finally  became  an  estate  of  the 
realm. 

“ Les  Dames  de  la  Halle/7  or  “ Dames  of  the 
Market/7  as  they  are  called,  have  a corporate 
existence ; and,  if  corporations  have  no  souls , 
they  ordinarily  possess  franchises ! They 
have  their  queen,  their  laws,  and  a language 
peculiar  to  themselves.  They  take  part  in 
revolutions,  and  send  deputations  to  the  foot 
of  the  throne.  Nor  am  I alluding  now  to  long- 


102 


THE  ENGLISH  COMMON  LAW. 


past  feudal  or  re-actionary  crises.  Louis  Na- 
poleon treats  theyu  as  civilly  as  he  does  the 
clergy.  When  he  was  married,  and  when 
the  young  prince  was  born,  they  went  to  the 
Tuileries  in  their  court-dress.  Their  prin- 
cesses — and  we  are  told  that  their  blood  royal 
claims  the  higher  privilege  of  beauty  also  — 
their  princesses  took  the  front  rank  in  the 
procession,  and  offered  bouquets  to  their  im- 
perial majesties.  In  response,  Louis  Napoleon 
gave  to  them  what  he  gives  to  all  corporations, 
— a very  diplomatic  speech. 

I have  told  you  what  was  granted  at  Upsal 
in  1858.  It  is  a curious  fact,  that,  just  at  the 
moment  when  this  question  of  suffrage  was 
first  agitated  by  the  women  of  the  United 
States  assembled  in  convention  at  Seneca 
Falls  in  1848,  Pauline  Roland  and  Madame 
Moniot  publicly  claimed  their  civil  rights  in 
Paris.  Pauline  went  herself  to  the  ballot,  and, 
when  her  vote  was  refused,  published  a pro- 
test after  the  fashion  of  our  tax-payers.  Very 
absurd  English  society  found  woman’s  first 


THE  ENGLISH  COMMON  LAW. 


103 


demand  for  the  suffrage ; yet  what  English- 
men refuse  contemptuously  to  give  to  woman, 
certain  men  of  the  mean  sort,  yet  calling 
themselves  respectable,  have  not  been  ashamed 
in  that  very  country  to  borrow  of  her.  Even 
“ Blackwood  ” helps  out  our  argument,  when 
it  says,  in  November,  1854,  “I  believe,  Euse- 
bius, I speak  of  a notorious  fact,  when  I say, 
that  it  is  less  than  a century  since,  for  election 
purposes,  parties  were  unblushingly  married 
in  cases  where  women  conveyed  a right  of 
freedom,  a political  franchise  to  their  hus- 
bands, and  parted,  after  the  election,  by 
shaking  hands  over  a tombstone,  as  an  act  of 
dissolution  of  the  contract,  under  cover  of  the 
words, 1 Until  death  do  us  part.’  The  men 


* In  an  article  in  the  “Edinburgh  Weekly  Journal”  for  Jan. 
10,  1827,  written  by  Sir  Walter  Scott,  the  following  allusion  is 
made  to  abuses  which  had  crept  into  the  army  in  the  middle  of 
the  eighteenth  century : — 

“To  sum  up  this  catalogue  of  abuses,  commissions  were  in 
some  instances  bestowed  upon  young  ladies , when  pensions  could 
not  be  had.  We  know  ourselves  one  fair  dame  who  drew  the 
pay  of  a captain  in  the  — — dragoons,  and  was  probably  not 
much  less  fit  for  the  service  than  some  who  at  that  period  actu- 
ally did  duty.” 


104 


THE  ENGLISH  COMMON  LAW. 


who  looked  calmly  on  this  profane  and  absurd 
fraud  may  well  dread  the  moral  influence  of 
woman  on  elections.  As  to  the  historical  argu- 
ment for  England,  ladies  of  birth  and  quality, 
we  are  told,  sat  in  council  with  the  Saxon  Witas. 
The  Abbess  Hilda  presided  in  an  ecclesiasti- 
cal council.  “ In  Wightfred’s  great  council  at 
Benconceld  in  694,”  says  Gurdon  in  his  “Anti- 
quities of  Parliament,”  “the  abbesses  sat  and 
deliberated ; and  five  of  them  signed  decrees 
of  that  council,  with  the  king  and  bishops : ” 
and  that  illuminated  prebendary  of  Sarum,  old 
Thomas  Fuller,  thus  further  chronicles  the 
same  event:  — 

u A great  council  (for  so  it  is  titled)  was  held  at 
Becanceld  (supposed  to  be  Beckingham  in  Kent) 
by  Withred,  King  of  Kent,  and  Bertuald,  Arch- 
bishop of  Britain,  so  called  therein  (understand, 
him  of  Canterbury),  wherein  many  things  were 
concluded  in  favor  of  the  church.  Five  Kentish 
abbesses  — namely,  Mildred,  Ethelred,  >ZEte,  Wil- 
nolde,  Heresinde  — were  not  only  present,  but  sub- 
scribed their  names  and  crosses  to  the  constitutions 
concluded  therein  ; and  we  may  observe,  that 
their  subscriptions  are  not  only  placed  before  and 


THE  ENGLISH  COMMON  LAW. 


105 


above  all  presbyters,  but  also  above  that  of  Botred, 
a bishop  present  in  this  great  council.  It  seems  it 
was  the  courtesy  of  England  to  allow  the  upper 
hand  to  the  weaker  sex,  as  in  their  sitting,  so  in 
their  subscription.” 

King  Edgar’s  charter  to  the  Abbey  of  Crow- 
land,  in  961,  was  with  consent  of  the  nobles 
and  abbesses  who  signed  that  charter.  In 
Henry  the  Third’s  and  King  Edward  the 
First’s  time,  four  abbesses  were  summoned  to 
Parliament;  namely,  of  Shaftesbury,  of  Win- 
chester, of  Berking,  and  of  Wilton.  In  the 
thirty-fifth  year  of  Edward  the  Third,  were 
summoned  — by  writ  of  Parliament,  to  sit  in 
person  or  by  their  proxies  — Mary,  Countess 
of  Norfolk ; Alienor,  Countess  of  Ormond  ; 
Anna  Despenser ; Philippa,  Countess  of  March  ; 
Johanna  Fitz water ; Agneta,  Countess  of  Pem- 
broke ; Mary  de  'St.  Paul ; Mary  de  Roos ; 
Matilda,  Countess  of  Oxford;  Catharine,  Count- 
ess of  Athol. 

As  to  the  offices  which  women  can  hold  in 
Great  Britain,  we  have  already  quoted  some- 
thing from  Mr.  Higginson,  in  speaking  of  the 


106 


THE  ENGLISH  COMMON  LAW. 


prohibitions  of  the  law.  Lady  Packington’s 
estate  has  probably,  by  this  time,  passed  into 
male  hands : so  she  elects  no  more  members  of 
Parliament.  Those  who  have  read  the  plea 
of  Lady  Alice  Lille,  when  she  was  forbidden 
to  speak  by  attorney,  will  find  no  great  diffi- 
culty in  imagining  that  a woman  could  manage 
a government  debate. 

Such  women  as  have  purchased  or  inherited 
East-India  stock  have  always  had  the  privi- 
lege of  voting  at  the  meetings  of  the  company, 
and  so  have  assisted  to  govern  that  unhappy 
country.  In  the  provincial  English  towns,  if 
I may  judge  from  the  indirect  testimony  of 
novels  and  newspapers,  women  appear  to  at- 
tend all  stockholders7  meetings ; certainly  those 
held  by  the  banks.  In  the  United  States,  they 
are  notified,  hut  not  expected  to  attend : a cool 
kind  of  insult,  which  I wish  some  women 
might  astonish  them  by  retaliating.  If  any 
bank  were  established  by,  or  had  a majority  of, 
female  stockholders,  it  would  be  quite  easy  to 
notify  men,  without  expecting  them  to  attend  ; 


THE  ENGLISH  COMMON  LAW. 


107 


and  the  alternative  of  trusting  their  own  pro- 
perty to  the  judgment  of  women  might  possi- 
bly open  the  eyes  of  men  to  the  absurdity  of 
the  present  custom. 

As  we  withdraw  our  eyes  from  the  past,  it 
is  natural  to  inquire,  What  late  changes  have 
taken  place  in  Great  Britain?  and  what  is  the 
strength  of  the  reform  tendency?  I have 
often  said,  yet  I must  repeat  it  here,  that  no- 
thing has  ever  promised  such  noble  usefulness 
for  woman,  nothing  has  ever  occurred  to 
change  the  popular  estimate  of  her  character, 
in  the  same  degree  as  the  formation  of  that 
out-of-door  Parliament , — the  Association  for 
the  Advancement  of  Social  Science.  It  of- 
fers a position  of  entire  equality  to  woman. 
It  encourages  her  to  express  herself  in  the 
presence  and  with  the  sympathy  of  the  wisest 
men,  and  gives  her  an  opportunity  to  speak  to 
the  actual  Parliament  through  her  own  influ- 
ence exerted  on  its  best  members.  It  has  been 
well  said  (I  think,  by  Mrs.  Mill),  that  the  very 
best  opportunities  of  education  will  be  opened 


108 


THE  ENGLISH  COMMON  LAW. 


to  woman  in  vain,  until  she  is  practically  in- 
vited to  turn  them  to  account.  Here,  in  this 
association,  is  her  first  practical  invitation  in 
Great  Britain.  God  grant  that  she  may  un- 
derstand the  responsibility  it  involves,  and 
bear  it  well ! But  the  formation  of  this  asso- 
ciation in  1857  was  preceded  by  other  steps. 
It  was  on  the  13th  of  February,  1851,  that  a 
petition  of  women,  agreed  to  by  a public  meet- 
ing at  Sheffield,  and  claiming  the  elective 
franchise,  was  laid  before  the  House  of  Lords 
by  the  Earl  of  Carlisle ; and,  in  July  of  the 
same  year,  Mrs.  Mill’s  admirable  article  on 
the  “Enfranchisement  of  Women,”  now  be- 
come commonplace  on  account  of  the  exten- 
sive and  thorough  use  that  has  been  made  of 
it,  appeared  in  the  “Westminster.” 

The  examination  of  Florence  Nightingale 
before  a commission  of  inquiry  bore  witness 
no  less  to  the  surpassing  ability  of  the  woman 
than  to  the  increasing  value  of  such  ability  to 
all  governments.  In  connection  with  it,  one 
could  not  but  smile  at  the  distress  felt  by  cer- 


THE  ENGLISH  COMMON  LAW. 


109 


tain  journals  over  a single  mistake  on  the  part 
of  the  lady  as  to  the  proper  title  of  a subor- 
dinate officer. 

In  the  month  of  March,  1856,  the  “ London 
Times77  published  a petition  to  both  Houses 
of  Parliament  in  behalf  of  an  amendment  of 
the  English  property-laws.  This  petition  was 
signed  by  many  women  whose  names  are  well 
known  and  dear  to  us,  — by  the  late  Anna 
Jameson,  so  well  known  to  the  world  as  an 
accomplished  critic  in  literature  and  art ; by 
the  wife  and  sister  of  the  poet  Browning,— 
Elizabeth  Browning  herself,  the  first  poet 
among  women,  so  far;  by  Bessie  Raynor Parkes 
and  Matilda  Hayes,  the  editors  of  the  “ English- 
woman’s Journal,  the  establishment  of  which 
of  itself  constitutes  an  era  in  the  progress  of 
human  thought ; by  Barbara  Bodichon,  the 
well-known  artist ; by  Harriet  Martineau,  dis- 
tinguished in  political  economy ; by  Mary 
Howitt,  the  womanly  story-teller  and  ballad- 
maker  ; and  Mrs.  Gaskell,  the  author  of  “Mary 
Barton.77  The  petition  was  supported  in  the 


110 


THE  ENGLISH  COMMON  LAW. 


House  of  Lords  by  Lord  Brougham,  and  in  the 
House  of  Commons  by  Sir  Erskine  Perry. 

After  the  close  of  the  session  in  April,  1857, 
a dinner  was  offered  to  Lord  Brougham  in  ac- 
knowledgment of  the  distinguished  ardor  with 
which  he  had  pressed  this  bill,  — the  Married 
Woman’s  Property  Act  of  1857.  This  bill 
did  not  apply  to  Ireland  or  Scotland,  nor  to 
pre-existing  contracts ; that  is,  to  marriages 
solemnized  before  the  first  day  of  January, 
1858.  It  was  not  passed ; but  a clause  for  the 
protection  of  the  earnings  and  savings  of 
married  women  was  introduced  into  the  New 
Divorce  Bill,  and  has  already  proved  a bless- 
ing to  hundreds.  This  clause,  however,  ope- 
rates only  in  cases  of  desertion,  — a charge 
easily  evaded.* 

* “ In  the  little  brown  duodecimo  which  contains  the  jottings 
of  ‘that  famous  lawyer,  William  Tothill,  Esquire,’  there  is  the 
following  entry,  of  the  date  of  James  I. : — 

“ ‘ Fleshward  contra  Jackson.  Money  given  to  a feme  covert 
for  her  maintenance,  because  her  husband  is  an  unthrift.  The 
husband  pretends  the  money  to  be  his ; but  the  court  ordered 
the  money  to  be  at  her  own  disposal.”  — London  Quarterly , July, 
1861.  A very  ancient  germ  of  “ A Married  Woman’s  Property 
Law.” 


THE  ENGLISH  COMMON  LAW. 


Ill 


The  New  Divorce  Bill  passed  in  July,  1858  : 
and,  since  then,  the  Divorce  and  Matrimonial 
Causes,  Act  Amendment  Bill,  passed  in  July, 
1858;  and  the  Divorce  Court  Bill  in  August, 
1859;  both  of  these  last  having  been  made 
necessary  by  the  change  in  the  law.  It  was 
in  April,  1858,  that  Mr.  Buckle  delivered  his 
lecture  on  “ Civilization;”  an  important  contri- 
bution to  that  estimate  of  woman,  which  is 
beginning  to  act  powerfully  on  all  legislation. 
The  Lavr-Amendment  Society  also  published 
a report,  urging  a thorough  reform  of  the 
law. 

In  connection  with  the  reforms  effected  in 
the  mother-country,  it  may  be  well  to  state, 
that  similar  reforms  are  being  effected  in 
Canada.  Legislators  there  turn  for  their  pre- 
cedents to  England ; but  there  can  be  no 
doubt  that  the  agitation  in  the  United  States 
largely  contributes  towards  these  changes. 

A Married  Woman’s  Property  Act  passed 
the  Council  in  May,  1858 ; but  as  these  changes 
are  still  in  progress,  and  a progress  much  in- 


112 


THE  ENGLISH  COMMON  LAW. 


terrupted  by  political  fluctuations,  it  seems 
hardly  worth  while  to  enter  into  their  details. 

In  one  respect,  the  statutes  of  Canada  are 
marked  by  a singular  inconsistency.  They  re- 
cord the  only  instance,  within  my  knowledge, 
in  which  a government  distinctly  forbids  wo- 
men to  vote ; and  almost  the  only  instance  of 
a government  conferring  that  right,  even  to  a 
limited  extent.  In  the  twelfth  year  of  Victo- 
ria, the  Canadian  Government  passed  a statute 
in  these  words : “ No  woman  is  or  shall  be  en- 
titled to  vote  at  any  election  for  any  electoral 
division  whatever.”  What  spasm  of  autocra- 
tic terror,  what  momentary  rebellion  against 
their  liege  lady,  inspired  this  act,  we  are  left 
uninformed.  For  the  most  part,  in  all  coun- 
tries, women  wait  to  be  told  that  they  may 
vote ; and  their  ineligibility  is  decided  by  the 
introduction  of  the  word  “male,”  or  the  popular 
construction  of  the  word  “ citizen,”  which,  it 
is  quite  evident,  does  not  mean  a woman.  But 
it  was  in  Canada  also  that  a distinct  electoral 
privilege  was  conferred  by  intention  in  1850; 


THE  ENGLISH  COMMON  LAW. 


113 


an  intention,  however,  which  indicated  no  en- 
largement of  views,  nor  desire  of  reform,  nor 
recognition  of  woman  at  her  human  value  : it 
was  simply  an  intention  on  the  part  of  the 
Protestants  to  secure  a little  more  political 
power.  Not  humane , then,  but  interested  mo- 
tives, dictated  the  omission  of  the  word  “male” 
in  that  section  of  the  statutes  which  provides 
for  the  election  of  school  trustees.  It  was 
desired  thus  to  bring  the  influence  of  female 
property- holders  and  Protestants  to  check 
the  Roman  - Catholic  demand  for  separate 
schools.  Three  things  made  it  easy  for  Cana- 
dian women  to  vote  under  this  provision : — 

1st,  The  great  degree  of  individual  inde- 
pendence seen  everywhere  in  English-born 
women,  as  compared  with  American. 

2d,  The  respect  felt,  in  all  countries  where 
distinctions  of  rank  exist,  for  the  mere  pro- 
perty-holder. 

3d,  The  political  excitement  of  the  local 
Protestant  Church,  which  sustained  them  to 
the  uttermost. 


8 


114 


THE  ENGLISH  COMMON  LAW. 


They  have  voted  for  ten  years ; and  a four- 
years7  residence  among  them  was  sufficient  to 
convince  me,  that  no  greater  derangement 
to  society  would  occur  if  the  full  right  were 
conferred.  In  connection  with  English  go- 
vernment and  English  colonies,  I ought  to 
speak  of  the  government  of  Pitcairn’s  Island. 
It  was  the  mutinous  crew  of  her  majesty’s  ship 
“ Bounty 99  that  settled  Pitcairn’s  Island.  Ad- 
ams, the  boatswain,  was  the  father  of  the  little 
community,  and  drew  up  the  simple  code  of 
laws  by  which  the  islanders  are  still  governed. 
On  Christmas  Day,  a magistrate  and  councillor 
are  elected  for  the  ensuing  year;  men  and 
women  over  sixteen  being  allowed  to  vote. 
The  women  assist  in  the  cultivation  of  the 
aground,  and  take  no  inconsiderable  share  in 
the  municipal  debates.  The  fate  of  this  expe- 
riment is  not  yet  decided ; so  I have  thought 
it  worth  while  to  preserve  the  statement. 
You  will  have  already  seen,  that  in  England, 
as  elsewhere,  so  long  as  the  right  of  suffrage 
depended  upon  possession  of  property,  upon 


THE  ENGLISH  COMMON  LAW. 


115 


hard  pieces  of  eight,  or  broad  acres  of  land, 
there  was  no  dispute  of  woman’s  privilege. 
It  is  no  new  thing  for  woman  to  vote  in  Eng- 
land: it  is  a very  old  thing.  It  is  only  a 
question,  whether  she  shall  vote  upon  the 
ground  of  her  humanity. 


III. 


TIIE  UNITED-STATES  LAW,  AND  SOME 
THOUGHTS  ON  HUMAN  RIGHTS. 


“ Men  often  think  to  bring  about  great  results  by  violent  and  unpre- 
pared effort ; but  it  is  only  in  fair  and  forecast  order,  ‘ as  the  earth 
bringetb  forth  her  bud,’  that  righteousness  and  praise  may  spring  forth 
before  the  nations.”  — John  Ruskin. 


TN  passing  last  to  the  United  States  of  Ame- 
rica,  one  is  tempted  to  ask,  with  Anna 
Brewster  when  rehearsing  the  hardships  of 
Helvetian  women,  “ Can  it  be  true,  as  the 
advocates  of  despotic  government  often  say, 
that  under  no  government  are  women  so 
harshly  treated,  so  stripped  of  all  independ- 
ent rights,  as  under  a republic  ? In  republi- 
can Helvetia,  the  Yaudois  peasant  woman 
leaves  all  household  care,  to  stand,  spring, 
summer,  and  autumn,  in  her  vineyard ; but 
not  a bunch  of  grapes  can  she  gather  for  the 
market,  without  her  husband’s  leave.  He  may 


THE  UNITED-STATES  LAW. 


117 


have  loitered  and  smoked  through  every 
sunny  day,  while  she  has  dug  and  dressed 
and  watered ; but  she  may  not  sell  one  grape 
to  buy  bread  for  her  children.7’ 

And  this  is  a picturesque  statement  of  the 
English  common  law,  on  which  the  common 
law  of  the  United  States  still  rests  in  the 
main,  and  on  which  it  has  rested  entirely 
until  within  the  last  ten  years. 

A few  passages  from  Chancellor  Kent  will 
indicate,  — - 

I.  The  estimate  of  woman  formed  by  this 
law,  and  the  property-laws,  built  upon  this  es- 
timate. 

II.  The  laws  which  regulate  divorce.  We 
shall  have  to  consider,  — 

III.  Woman’s  general  civil  position ; and, — 

IV.  The  right  of  suffrage. 

Fortunately  for  us,  Chancellor  Kent  talks 

plain  English.  He  tells  us  exactly  what  the 
law  means,  and  sets  it  forth  as  if  it  were 
written  to  be  understood  ; which  is  not  ex- 
actly the  case  with  all  his  predecessors. 


118 


THE  UNITED-STATES  LAW. 


As  to  the  estimate  of  woman  on  which  the 
laws  are  based,  we  have,  in  connection  with 
what  we  have  already  quoted  from  English 
law-books,  the  following  statement : — 

u But  as  the  husband  is  the  guardian  of  the  wife, 
and  bound  to  protect  and  maintain  her,  the  law  has 
given  him  a reasonable  superiority  and  control  over 
her  person  ; and  he  may  even  put  gentle  restraints 
upon  her  liberty,  if  her  conduct  be  such  as  to  re- 
quire it.  The  husband  is  the  best  judge  of  the 
wants  of  the  family,  and  the  means  of  supplying 
them  ; and,  if  he  shifts  his  domicile,  the  wife  is 
bound  to  follow  him.”  — Kent’s  Commentaries , 
vol.  ii.  p.  180. 

The  best  comment  on  this  is  found,  I think, 
in  a story  told  by  Mrs.  Stowe,  who  says  that 
she  once  saw  a little  hut  perched  on  a barren 
ledge  of  the  Alps,  out  of  reach  of  human  help, 
and  without  pasture  ; but  a little  below  it 
were  stretches  of  sweet  Alpine*  grass,  inviting 
to  eye  and  foot,  and  capable  of  affording  sus- 
tenance to  goats  and  sheep.  “ How  long  have 
you  lived  here  ? ” asked  Mrs.  Stowe  of  the  old 
woman.  “ Above  forty  years.”  - — “ And  what 


THE  UNITED-STATES  LAW. 


119 


made  you  come  so  far  up  ? Don’t  you  like  the 
meadow?”  — “I  don’t  know,”  was  the  reply: 
“ it  was  the  mart’s  notion .” 

It  is  somewhat  questionable,  whether  this 
man  would  be  the  best  judge  of  the  wants  of 
his  family,  Chancellor  Kent  to  the  contrary 
notwithstanding ; as  also  what  might  be  his 
idea  of  u gentle  restraint,”  in  case  the  wife 
had  refused  to  “ shift  her  domicile.”  As  to 
property,  Kent  proceeds  : — 

The  general  rule  is,  that  the  husband  be- 
comes entitled,  on  the  marriage,  to  all  the 
goods  and  chattels  of  the  wife,  and  to  the  rents 
and  profits  of  her  lands ; and  he  becomes  liable 
to  pay  her  debts  and  perform  her  contracts. 

1.  If  the  wife  have  an  inheritance  in  land, 
he  takes  the  rents  and  profits  during  their 
joint  lives.  He  may  sue  in  his  own  name  for 
an  injury  to  the  profits  of  the  land ; but,  if  the 
husband  himself  chooses  to  commit  waste, 
the  wife  has  no  redress  at  common  law. 

2.  If  the  wife,  at  the  time  of  her  marriage, 
hath  an  estate  for  her  life,  the  husband  be- 


120 


THE  UNITED-STATES  LAW. 


comes  seized  of  such  an  estate,  and  is  entitled 
to  the  profits  during  marriage. 

3.  The  husband  also  becomes  possessed  of 
the  chattels  real  of  the  wife  ; and  the  law  gives 
him  power,  without  her  consent , to  sell,  assign, 
mortgage,  or  otherwise  dispose  of, 'the  same  as 
he  pleases.  Such  chattels  real  are  liable  to  be 
sold  on  execution  for  his  debts  (voh  ii.  p.  133). 
If  he  survive  his  wife,  the  law  gives  him  her 
chattels  real  by  survivorship. 

4.  If  debts  are  due  to  the  wife  before  mar- 
riage, and  are  recovered  by  the  husband 
afterward,  the  money  becomes,  in  most  cases, 
absolutely  his  own. 

On  the  other  hand,  the  husband  is, — 

1st,  Obliged  to  provide  for  his  wife  out  of 
his  fortune,  or  her  own  that  he  has  taken  into 
his  custody,  of  what  the  court  calls  “ necessa- 
ries/7 — these  again,  of  course,  to  be  depend- 
ent on  the  u marts  notion  77  ! and,  — 

2d,  Becomes  liable  for  her  frauds  and  torts 
during  coverture,  — the  law  understanding, 
as  well  as  a merchant,  that  it  is  useless  to 
sue  a “ broken  bench.77 


THE  UNITED-STATES  LAW. 


121 


The  indulgence  of  the  law  toward  the  wife, 
we  are  then  told,  is  founded  on  the  idea  of 
force  exercised  by  the  husband : a presump- 
tion only,  which  may  be  repelled.  What  this 
indulgence  is,  we  may  well  be  puzzled  to 
guess,  unless  the  phrase  indicate  that  she 
is  not  to  be  prosecuted  for  theft,  where  both 
are  guilty ; and  yet,  if  the  presumption  that 
he  compelled  her  to  steal  be  repelled , she 
may  be  prosecuted,  and  found  guilty. 

A wife  cannot  devise  her  lands  by  will ; nor 
can  she  make  a testament  of  chattels,  except 
it  be  of  those  which  she  holds  en  autre  droit , 
without  the  license  of  her  husband.  It  is 
not  strictly  a will,  then,  only  an  appointment, 
which  the  husband  is  bound  to  allow  (vol.  ii. 
p.  170). 

The  laws  are  essentially  the  same  in  Penn- 
sylvania, Virginia,  North  Carolina,  South 
Carolina,  Kentucky,  and  New  York ; in  the 
latter  State,  of  course,  only  as  applicable  to 
marriages  contracted  before  the  passage  of  the 
new  bill.  It  is  the  same  in  all  the  States,  with 


122 


THE  UNITED-STATES  LAW. 


one  or  two  Western  exceptions  ; because  the 
passage  of  a new  law  never  annuls  pre-existing 
contracts.  In  consequence,  practice  becomes 
contradictory  and  intricate  ; and  most  law- 
yers not  only  feel,  but  show , a great  dislike  to 
new  laws  on  that  account. 

In  regard  to  marriage  and  divorce,  Kent 
says  that  the  English  practice  was,  not  to 
grant  divorce  for  unfaithfulness  on  the  part 
of  the  husband ; and  the  early  settlers  of  Mas- 
sachusetts made  the  same  distinction,  creating 
a difference  at  the  very  outset  in  the  moral 
responsibility  of  the  two,  fatal  alike  to  happi- 
ness and  civilization. 

In  1840,  the  policy  of  South  Carolina  con- 
tinued so  strict,  that  there  had  been  no  in- 
stance, since  the  Revolution,  of  a divorce 
pronounced  by  a court  of  justice,  or  an  act  of 
the  legislature. 

In  Massachusetts,  the  law  was,  that  divorce 
could  only  be  had  for  criminality.  In  Ver- 
mont, New  Jersey,  Kentucky,  Mississippi, 
and  Michigan,  divorce  from  “ bed  and  board  ” 


THE  UNITED-STATES  LAW. 


123 


may  be  had  for  extreme  cruelty ; and,  in 
Michigan,  for  wilful  desertion  for  three  years. 

In  Indiana  it  is  rendered  for  any  cause,  at 
the  judgment  of  the  court. 

In  Illinois,  divorce  may  be  had  for  the  usual 
causes,  and  for  drunkenness  or  cruelty,  or 
such  other  cause  as  the  court  shall  think 
right;  and,  in  such  cases,  the  wife  does  not 
lose  her  dower.  These  differences  in  statute 
law  indicate,  one  would  think,  a variety  suf- 
ficient to  test  in  time  all  the  theories  of 
reformers  and  experimentalists. 

As  to  the  consistency  of  the  law,  Poynter 
says,  — 

“It  is  singular  to  see  a marriage  annulled  on 
account  of  the  misspelling  or  suppressing  of  a name, 
which  would  be  held  valid  against  the  lasting  mi- 
sery of  the  parties.” 

By  cruelty  is  meant  “ reasonable  appre- 
hension of  bodily  hurt.”  Mere  austerity  of 
temper,  petulance  of  manners,  rudeness  of  lan- 
guage, a want  of  civil  attention,  even  occa- 
sional sallies  of  passion,  do  not  amount  to  that 


124 


THE  UNITED-STATES  LAW. 


cruelty  which  the  law  can  relieve.  The  wife 
must  disarm  her  husband  by  the  weapons  of 
'kindness ! 

I have  shown  you  upon  what  estimate  the 
general  common  law  of  the  United  States  is 
based,  as  regards  both  property  and  divorce. 
It  is  needless  to  say  that  this  estimate  is  very 
little  to  be  preferred  to  that  of  older  countries ; 
but,  when  the  reformers  of  our  cause  are 
tauntingly  asked  what  good  they  have  done, 
they  may  reply  proudly,  though  they  should 
point  to  the  changes  of  legislation  during  the 
last  ten  years  alone.  Since  1850,  the  laws 
have  been  changed  in  at  least  nineteen  States. 
The  credit  of  this  change  should  certainly  rest 
with  the  men  and  women  of  this  reform ; for, 
in  every  State,  its  sympathizing  friends  helped 
to  frame  the  new  laws. 

Whether  justly  or  not,  Rhode  Island  claims 
the  honor  of  leading  the  way  in  such  changes. 
In  1844,  the  Hon.  Wilkins  Updike  introduced 
a bill  into  her  legislature,  securing  to  married 
women  their  property  under  certain  regula- 


THE  UNITED-STATES  LAW. 


125 


tions.  The  step  was  in  the  right  direction. 
In  1847,  Vermont  passed  similar  enactments. 
In  1848-9,  Connecticut,  New  York,  and  Texas 
followed;  in  1850,  Alabama ; in  1853,  New 
Hampshire.  In  1855,  Massachusetts  passed 
an  act  of  a still  more  comprehensive  kind.  It 
was  essentially  the  same  as  that  introduced 
into  her  senate,  in  1852,  by  the  Hon.  S.  E. 
Sewall.  It  was  not  wholly  satisfactory  to 
those  who  prepared  it,  but  was  the  best  it  was 
thought  possible  to  pass.*  In  1856  and  1857, 


* A law,  apparently  favorable  to  all  widows,  passed  the 
Massachusetts  Legislature  at  the  last  session.  It  seems  to  me, 
however,  to  bear  the  marks  of  a law  passed  for  a special  case.  I 
have  made  several  applications  in  the  proper  quarters  for  infor- 
mation concerning  it,  but  have  received  nothing  in  return. 

Chap.  164.  — An  Act  concerning  the  Provisions  for 
Widows  in  certain  Cases. 

Be  it  enacted , cfc.,  as  follows : — 

Sect.  1.  — When  a man  dies,  having  lawfully  disposed  of  his 
estate  by  will,  and  leaving  a widow,  she  may,  at  any  time  within 
six  months  after  the  probate  of  the  will,  file  in  the  probate-office, 
in  writing,  her  waiver  of  the  provisions  made  for  her  in  the  will ; 
and  shall,  in  such  case,  be  entitled  to  such  portion  of  his  real  and 
personal  estate  as  she  would  have  been  entitled  to  if  her  husband 
had  died  intestate : provided , however,  that,  if  the  share  of  the  per- 
sonal estate  to  which  she  would  thus  become  entitled  shall  exceed 
the  sum  of  ten  thousand  dollars,  she  shall,  in  such  case,  be  en- 
titled to  receive  in  her  own  right  the  said  amount  of  ten  thousand 


126 


THE  UNITED-STATES  LAW. 


the  Legislatures  of  Kentucky,  Missouri,  Indi- 
ana, Ohio,  Rhode  Island,  and  Maine,  altered 
their  property-laws,  — Rhode  Island  advan- 
cing somewhat  on  her  first  step.* *  Wisconsin 


dollars,  and  to  receive  the  income  only  of  the  excess  of  said  share 
above  said  sum  of  ten  thousand  dollars  during  her  natural  life. 
If  she  makes  no  such  waiver,  she  shall  not  be  endowed  of  his 
lands,  unless  it  plainly  appears  by  the  will  to  have  been  the  in- 
tention of  the  testator  that  she  should  have  such  provisions  in 
addition  to  her  dower. 

Sect.  2.  — Upon  application,  made  by  the  widow  or  any  one 
interested  in  the  estate,  the  judge  of  probate  may  appoint  one 
or  more  trustees,  to  receive,  hold,  and  manage,  during  the  life- 
time of  the  widow,  the  portion  of  the  personal  estate  of  her 
deceased  husband,  exceeding  ten  thousand  dollars,  of  which  she 
is  entitled  to  receive  under  this  act. 

Sect.  3. — The  twenty-fourth  section  of  the  ninety-second 
chapter  of  the  General  Statutes  is  hereby  repealed. 

Approved  April  9,  1861. 

In  a case  on  trial  in  the  Superior  Court  to-day  (Oct.  3,  1861), 
Chief-Justice  Allen  ruled  that  the  law  of  1855,  allowing  married 
women  to  do  business  on  their  own  account,  separate  and  apart 
from  their  husbands,  did  not  exclude  them  from  entering  into 
business-partnerships  with  men  other  than  their  husbands. 

* On  the  7th  of  Apfil,  1861,  the  Ohio  Legislature  passed  a 
bill  concerning  the  Rights  and  Liabilities  of  Married  Women. 

Sect.  1 conveys  the  impression,  that  all  married  women  may 
control  their  rents  and  issues  of  real  estate  belonging  to  them 
at  marriage,  or  separately  received  after. 

Sect.  5,  however,  says  “that  this  law  shall  not  affect  any 
rights  which  may  have  become  vested  in  any  person  at  the  time 
of  its  taking  effect;  ” which,  of  course,  cuts  off  from  its  bene- 
ficial results  all  persons  previously  married. 


THE  UNITED-STATES  LAW. 


127 


and  Iowa  have  followed ; and  it  is  not  likely 
that  any  new  States,  unless  they  should  be 
Slave  States,  will  repeat  the  old  barbarisms. 

I have  given  Rhode  Island  the  precedence 
she  claims;  but  there  are  certain  statutes  of 
the  State  of  Illinois,  as  early  in  date  as  Janu- 
ary, 1829,  which  deserve  to  be  alluded  to,  on 
account  of  their  unusual  liberality. 

If  married,  and  over  the  age  of  eighteen 
years,  a woman  in  Illinois  may,  in  spite  of  her 
husband,  devise  her  real  estate,  and  bequeathe 
her  personal  estate,  to  any  one  for  ever. 

The  wife  may  administer  on  her  deceased 
husband’s  estate,  in  preference  to  all  others, 


It  seems  a perfectly  simple  matter  to  a woman  to  obviate  the 
difficulties  and  disappointments  which  arise  in  this  way. 

Let  parties  married  under  the  old  law,  but  desiring  to  benefit 
by  the  new,  go  before  a magistrate,  and  state  their  wish ; and 
then  let  the  decision  in  their  favor  be  published  in  the  regular 
way. 

Such  a method  would  not  benefit  parties  at  variance ; but  it 
would  benefit  a large  class  of  women  engaged,  or  desiring  to  en- 
gage, in  independent  business. 

The  Ohio  law  repeals  a former  law  of  1857,  which  secured 
to  all  married  women  the  control  of  the  sale  or  the  disposal  of 
personal  property  exempt  from  execution : so  its  benefits  are  of 
a nature  by  no  means  unmixed. 


128 


THE  UNITED-STATES  LAW. 


if  she  apply  within  sixty  days.  On  her  hus- 
band’s death,  she  inherits  one-half  of  his  real 
estate  in  fee-simple,  absolute ; and  the  whole 
of  his  personal  estate,  with  her  rights  of 
dower  in  addition. 

The  wife  has  not  legally  the  first  title  to  the 
guardianship  of  her  child  on  the  demise  of  her 
husband ; but  she  has  it  by  a kind  of  comity , 
the  consent  of  public  opinion  and  the  courts. 

In  reference  to  the  wife’s  inheriting  from 
the  husband,  my  correspondent,  the  Hon. 
William  H.  Herndon,  says,  — 

“You  will  perceive  a difference  in  the  two  sec- 
tions relating  to  the  wife  and  husband  as  inheriting 
from  one  another,  favorable  to  the  wife  apparently. 
In  the  twenty-second  section  you  will  find,  that,  in 
case  of  the  wife’s  death  without  children,  the  hus- 
band inherits  one-half  of  her  real  estate  in  fee- 
simple,  absolute  ; but  nothing  is  said  about  her 
personal.  This  is  because  the  common  law  has 
already  given  him  her  personal  estate  on  her  mar- 
riage.” 

So  we  see  that  the  State  of  Illinois  did  not 
quite  divest  itself  of  the  barbarisms  of  the 
common  law. 


THE  UNITED-STATES  LAW. 


129 


In  a later  letter,  Mr.  Herndon  continues : — 

“ Our  Illinois  Legislature  has  this  winter  (1860- 
61)  enacted  a law,  allowing  women  (married  wo- 
men) all  their  property,  — real,  personal,  mixed,  — 
free  from  all  debt,  contract,  obligation,  and  control 
of  their  husbands.  This  law  puts  man  and  woman 
in  the  same  position,  as  far  as  property-rights  and 
their  remedies  are  concerned.  This  is  right, — just 
as  it  should  be.  For  my  life,  I cannot  see  why 
there  should  be  any  distinction  between  men  and 
women,  when  we  speak  of  rights  under  government. 
A woman’s  rights  are  identical  with  a man’s. 
Where  he  is  limited,  she  should  be  ; where  she 
is  limited,  he  should  be.”  * 

In  Rhode  Island,  the  civil  existence  of  the 
husband  and  wife  is  but  one  ; and,  though 
the  letter  of  the  law  considers  her  property 
acquired  by  trade  or  inheritance  as  techni- 
cally her  own,  still  it  is  no  longer  under  her 
single  control.  If,  as  a wife,  she  sells  mer- 
chandise, the  buyer  becomes  a debtor  to  her 
husband  and  herself.  If  she  makes  a purchase, 


* This  expression  of  Mr.  Herndon’s  opinion  gains  additional 
interest  from  the  fact  that  he  has  been  for  seventeen  years  the 
legal  partner  of  Abraham  Lincoln,  now  President  of  the  United 
States. 


130  THE  UNITED-STATES  LAW. 

her  note  is  good  for  nothing,  unless  her  hus- 
band’s signature  is  affixed  to  it.  He  can 
dispose  of  the  whole  of  her  personal  estate, 
unless  the  buyer  has  been  previously  notified 
by  her,  in  writing,  that  the  property  is  exclu- 
sively her  own.  Her  real  estate  the  husband 
cannot  sell  : but  even  of  this  she  cannot  dis- 
pose by  will ; so,  perhaps,  it  might  as  well  be 
sold.  The  absurdity  becomes  ludicrous,  when 
we  remember  that  the  law  makes  her  compe- 
tent to  devise  any  number  of  millions,  so  long 
as  it  is  invested  in  bank-stock  or  merchan- 
dise. 

In  the  State  of  Vermont,  there  are  three 
peculiar  provisions:- — 

First , If  the  husband  abscond  without 
making  sufficient  provision  for  his  wife,  she 
is  permitted  (!)  to  use  her  own  property  and 
earnings,  or  the  earnings  of  her  minor  chil- 
dren, to  secure  a support.  This  permission 
indicates  the  tender  mercies  of  the  common 
law,  and  reminds  us  of  the  Helvetian  peasant- 


woman. 


THE  UNITED-STATES  LAW. 


131 


Second , She  is  exempted  from  personal  re- 
straint during  the  pendency  of  a divorce  suit. 

Third , A mother  and  her  illegitimate  child 
may  inherit  from  each  other. 

A married  woman  may  devise  her  real  es- 
tate, and  it  is  exempt  from  attachment  for  the 
sole  debts  of  her  husband.  She  may  have 
her  husband’s  life  insured,  the  insurance  to  be 
made  payable  to  her  or  her  children.  If  he 
should  be  put  into  the  penitentiary,  she  may 
transact  business  as  if  she  were  a feme  sole . 

The  laws  of  inheritance  are  liberal ; and  the 
common  law  prevails  by  statute,  when  not 
repugnant  to  any  recorded  statute. 

In  Connecticut,  in  1855,  all  the  real  estate 
owned  at  the  time  of  marriage,  or  subse: 
quently  inherited  by  the  wife,  rests  absolutely 
in  her.  All  her  personal  estate  passes  to  her 
husband  ; but  all  that  she  may  afterward 
receive  remains  in  her  right,  her  husband 
being  only  her  legal  trustee.  Her  earnings 
are  subject  to  his  trusteeship,  and  nothing 
more.  She  is  the  guardian  of  her  own  chil- 


132 


THE  UNITED-STATES  LAW. 


dren  ; and  the  court  always  confirms  this 
right,  unless  she  is  incapacitated.  In  case  of 
divorce,  the  father  is  entitled  to  the  children, 
unless  objection  is  made.  On  the  decease  of 
the  husband  childless,  one-half  of  his  personal 
estate  goes  to  the  wife,  and  a life-interest  in 
one-third  of  the  real ; or  the  whole,  if  it  be 
needed  for  her  support. 

In  New  Hampshire,  the  common  law  pre- 
vails for  the  most  part.  What  express  enact- 
ments she  passed  in  1853  seem  to  refer  rather 
to  making  the  position  of  a deserted  wife 
equivalent  to  that  of  a feme  sole  than  any 
thing  else. 

As  regards  Massachusetts,  it  is  common  to 
say  that  the  legislation  of  1855  leaves  very 
little  to  be  desired,  beside  the  right  of  suf- 
frage ; but  a keen  eye  still  detects  more  than 
one  shortcoming.  The  custody  of  the  wife’s 
person  still  vests  in  the  husband. 

With  reference  to  the  guardianship  of  chil- 
dren, the  custom  is  in  advance  of  the  law; 
while  her  power  to  make  a will  is  so  care- 


THE  UNITED-STATES  LAW. 


133 


fully  guarded,  that  it  might  as  well  be  surren- 
dered. 

A married  woman  in  Massachusetts  can 
make  no  contract  to  bind  her,  except  one 
strictly  relating  to  her  trade,  business,  or  pro- 
perty. She  cannot,  for  instance,  indorse  a 
note,  or  be  a surety  for  another  person  in 
any  way. 

In  Maine,  since  1857,  a wife  may  hold  the 
wages  of  her  own  labor. 

In  Ohio,  at  the  same  date,  the  law  gave  this 
right  only  under  conditions . Long  before  any 
such  changes  took  place,  however,  the  current 
of  public  opinion  often  forced  courts  to  decide 
against  the  common  law,  and  in  accordance 
with  equity,  — equity  not  technically,  but 
divinely,  considered. 

Judge  Graham,  of  the  Court  of  Common 
Pleas  in  Perry  County,  Penn.,  made  such  a 
decision  in  a suit  where  a wife  claimed  return 
of  earnings  loaned  by  her  to  her  husband, 
and  accumulated  after  marriage.  The  legal 
question  brought  before  Judge  Graham  was, 


134 


THE  UNITED-STATES  LAW. 


“ Can  a wife  maintain  a suit  against  her  hus- 
band ? ” He  decided  that  she  could  legally 
hold  him  to  a contract  of  the  kind  under  con- 
sideration ; and  a verdict  wras  rendered  for 
the  woman,  in  the  sum  of  $2,508. 

In  August,  1859,  Mrs.  Dorr  put  in  a claim 
for  $40,000  on  her  husband’s  estate,  in  the 
Court  of  Insolvency  in  Worcester  County. 
The  court  objected  to  entertaining  the  claim 
until  after  the  choice  of  an  assignee.  The 
hearing  was  never  completed ; some  private 
adjustment  taking  its  place.  The  claim  was 
said  to  be  the  first  of  the  kind  in  the  Com- 
monwealth. 

We  come  now  to  the  consideration  of  the 
Property  Bill,  passed  in  the  spring  of  1860  by 
the  State  of  New  York.  Not  only  as  the 
latest  act  of  specific  legislation,  but  as  the 
most  complete  provision  ever  made  by  any 
government  to  outwit  the  common  law,  it 
demands  our  attention.  After  it  was  passed, 
a deficiency  relating  to  the  rights  of  guardian- 
ship was  discovered,  and  a supplement  was 


THE  UNITED-STATES  LAW. 


135 


added.  By  these  two  acts,  the  “ New-York 
Tribune  ” tells  us  that  at  least  five  thousand 
women  in  that  State  are  redeemed  from  pau- 
perism, and  established  in  peaceful  homes. 

But  the  supplement  bears  on  one  important 
point,  which  should  be  alluded  to.  According 
to  the  common  law,  as  I showed  in  referring  to 
England,  a daughter  owes  service  only  to  her 
father.  The  mother,  who  bore  and  nursed 
her  ; who  has  trained  her  up,  it  may  be  by 
painful  sacrifices,  to  habits  of  propriety  and 
thrift,  — has  no  claim  upon  her  service,  even 
in  her  minority.  By  conferring  on  the  mo- 
ther, in  case  of  the  father’s  decease,  all  the 
rights,  remedies,  privileges,  and  responsibili- 
ties in  law  appertaining  to  the  father,  the  new 
act  meets  the  difficulty. 

Before  quitting  the  subject,  we  cannot  re- 
frain from  alluding  to  the  fact,  that,  as  early 
as  1849,  the  State  of  New  York  had  passed  a 
qualified  measure  in  regard  to  property ; and 
directing  your  attention  to  the  manifest  truth, 
that  every  imperfect  act  of  legislation  consti- 


136 


THE  UNITED-STATES  LAW. 


tutes  a new  set  of  exceptions  to  general  rules, 
and  very  undesirably  complicates  legal  prac- 
tice. 

If  reforms  are  not  to  be  unpopular,  they 
should  be  simple  and  complete.* 

In  commenting  on  the  passage  of  these  bills, 
advocated  by  Mrs.  Stanton  before  the  com- 
mittees of  the  Assembly  and  the  Senate,  the 
“New-York  Tribune  ” says, — 

u Mrs.  Stanton  talked  forcibly.  It  is  needless 
for  me  to  say  that  she  talked  earnestly  of  woman’s 
sufferings,  — sweetly  of  her  endurance,  eloquently 
of  her  rights.  When  she  talked  of  her  right  to  be 
protected  in  the  enjoyment  of  her  property,  of  her 
right  to  be  released  from  the  bondage  of  an  ill- 
assorted  marriage,  she  was  listened  to  with  marked 
favor.  She  pleaded  these  demands  with  the  feel- 
ing of  a true  woman  ; and  she  carried  the  convic- 
tion, that  she  was  not  asking  more  than  policy,  as 
well  as  justice,  demanded  should  be  conceded. 
When  she  claimed  that  her  voice  should  be  heard 
on  the  hustings,  and  her  vote  be  received  at  the 
ballot-box,  she  was  earnest  and  eloquent  and  plau- 
sible ; but  she  must  have  felt  that  she  was  not 
convincing  her  audience,  and  she  did  not.” 


* See  note,  pages  126,  127. 


THE  UNITED-STATES  LAW. 


137 


Here  the  single  word  plausible  vitiates,  as 
cunning  reporters  well  know  how  to  do,  the 
whole  effect  of  the  sentence.  Far  more  rea- 
sonably, the  u Tribune  77  might  have  said  she 
was  earnest,  eloquent,  and  sensible ; and  so 
have  spurred  its  readers  to  thought  instead 
of  ridicule.  His  criticism,  however,  launches 
fairly  our  last  subject  of  discussion.  It  is 
needless  to  say,  that  nowhere  in  the  United 
States  has  woman  the  full  power  of  suffrage. 

In  New  Jersey,  women  formerly  possessed, 
and  often  exercised,  this  right.  By  the  Con- 
stitution, adopted  July  2,  1776,  the  privilege 
of  voting  was  accorded  to  all  inhabitants,  of 
full  age  and  clear  estate,  who  had  resided  for 
a certain  time  in  the  country,  and  who  had 
fifty  dollars  in  proclamation-money. 

In  1790,  a Quaker  member  of  the  Assembly 
had  the  act  so  drawn  as  to  read  “ he  or  she.77 
Until  1807,  women  often  voted,  especially  in 
times  of  great  political  excitement : at  such 
times,  for  the  most  part,  “ under  influence,77 
we  may  presume.  Many  voted  in  the  presi- 


138 


THE  UNITED-STATES  LAW. 


dential  contest  of  1800  ; and  a newspaper  of 
that  period  thanks  them  for  unanimously  sup- 
porting John  Adams  in  opposition  to  Jefferson. 
So  they  were  supposed,  at  times,  to  act  inde- 
pendently. At  an  election  in  Hunterdon 
County  in  1802,  the  ballots  of  some  colored 
women  elected  a member  of  the  legislature. 
Probably  this  fact,  by  stimulating  the  local 
prejudice  against  color,  and  the  fading-out  of 
all  aristocratic  distinctions,  which  left  no  pro- 
perty qualifications  on  the  statute-book,  led 
to  a change ; for,  in  1807,  an  act  was  passed, 
limiting  the  right  of  suffrage  to  u free  white 
male  citizens  of  twenty-one  years.” 

In  later  times,  committees  of  intelligent 
men,  in  Wisconsin,  Michigan,  and  Ohio,  have 
reported  in  favor  of  granting  to  women  the 
right  of  suffrage  ; but  the  question  was  lost  in 
the  ballot  which  followed. 

If  the  constitution  prepared  for  Kansas 
should  be  accepted  by  the  people,  single  wo- 
men will  be  empowered  to  vote  there.  In 
Nebraska,  the  lower  house  passed  a vote,  con- 


THE  UNITED-STATES  LAW. 


139 


ferring  the  privilege  ; but  it  was  too  late  in 
the  session  for  the  question  to  come  before  the 
upper  branch. 

In  1858,  a proposition  to  amend  the  Consti- 
tution of  the  State  of  Connecticut,  so  as  to 
extend  the  franchise  to  women,  received 
eighty-two  votes  in  the  House  of  Representa- 
tives. It  was  defeated  by  a majority  of  forty- 
five.  In  1852,  the  Kentucky  Legislature,  in 
providing  for  the  election  of  school-trustees, 
enacted  that  “ any  widow,  having  a child  be- 
tween six  and  eighteen  years,  may  vote  in 
person  or  by  proxy.” 

A provision  thus  limited  by  public  opinion 
and  prejudice  would  probably  have  very  little 
force.  I have  understood  that  such  a pro- 
vision has  taken  effect  in  some  parts  of  Michi- 
gan, and  it  has  also  been  recommended  to 
the  State  of  Massachusetts.  Very  early  in  the 
history  of  our  Government,  its  inconsistencies 
became  a matter  of  comment  among  women 
themselves.  How  could  it  be  otherwise  ? 
How  can  she  be  said  to  have  a right  to  life , 


140 


THE  UNITED-STATES  LAW. 


who  has  never  consented  to  the  laws  which 
may  deprive  her  of  it ; who  is  steadily  refused 
a trial  by  her  peers  ; who  has  no  voice  in  the 
election  of  her  judges  ? How  can  she  be  said 
to  have  a right  to  liberty , whose  person,  if  not 
yet  in  custody,  almost  inevitably  becomes  so 
on  her  maturity ; who  does  not  own  her  own 
earnings  ; who  can  make  no  valid  contract, 
and  is  taxed  without  representation  ? How 
can  that  woman  be  said  to  possess  either  the 
right  or  the  reality  of  happiness , who  is  de- 
prived of  the  custody  of  her  own  person,  of 
the  guardianship  of  her  children,  of  the  right 
to  devise  or  share  her  property  ? 

The  government  is  tyrannical  which  leaves 
a single  citizen  in  this  predicament.  What  is 
to  be  said  of  a government  which  enforces  it 
upon  half  its  subjects? 

It  is  not  strange  then,  that,  half  in  jest,  half 
in  earnest,  the  wife  of  John  Adams  wrote  to 
him  in  1776  to  ask  if  it  “were  generous  in 
American  men  to  claim  absolute  power  over 
wives  at  a moment  when  they  were  emanci- 


THE  UNITED-STATES  LAW. 


141 


pating  the  whole  earth.”  Nor  was  it  strange, 
that,  in  a more  serious  mood,  Hannah  Corbin 
of  Virginia  should  write  to  her  brother,  Rich- 
ard Henry  Lee,  on  the  same  subject. 

The  American  Colonies  were  struggling 
against  the  mother -country,  on  the  ground 
that  taxation  and  representation  should  be 
inseparable. 

The  “ National  Intelligencer  ” has  to  con- 
fess, when  it  tells  the  story,  that  it  was  not 
strange  if  “ strong-minded  ” women  of  that 
era,  finding  themselves  taxed , should  wonder 
why  they  could  not  vote. 

Mr.  Lee  wrote  from  Chantilly  in  reply, 
March  17,  1778:  — 

“ I do  not  see,”  he  says,  u that  any  thing  pre- 
vents widows,  having  large  property,  from  voting, 
notwithstanding  it  has  never  been  the  case  either 
here  or  in  England.  Perhaps  it  was  thought  unbe- 
coming for  women  to  press  into  tumultuous  assem- 
blies. . . . Perhaps  it  was  thought,  that,  as  all 
those  who  vote  for  taxes  must  bear  the  tax,  none 
would  be  imposed,  except  for  the  public  good. 

“For  both  the  widow  and  the  single  woman,” 
he  continues,  “ 1 have  the  highest  respect ; and 


142 


THE  UNITED-STATES  LAW. 


would,  at  any  time,  give  my  consent  to  secure  to 
them  the  franchise,  though  I do  not  think  it  would 
increase  their  security. 

u The  Committee  of  Taxation,”  he  adds,  “ are 
regularly  chosen  by  the  freeholders  and  housekeep- 
ers ; and,  in  the  choice  of  them,  you  have  as  legal  a 
right  to  vote  as  any  person.” 

Mr.  Lee  thinks,  that,  in  a few  minutes’  con- 
versation, he  could  “ content 77  his  sister  upon 
the  subject;  but  eighty  years  have  passed 
away,  and  the  question  is  still  unsettled. 

What  he  calls  a u woman’s  security 77  is 
proved  to  be  no  security,  even  in  the  small 
matter  of  money ; for  men  are  constantly  im- 
posing taxes,  the  burden  of  which  they  are 
never  to  bear.  As  I have  shown,  in  treating 
of  labor,  what  position  women  hold  toward 
the  State  in  the  matter  of  employment,  I will 
not  repeat  the  statement  here.  Let  these 
pages  bear  no  other  burden  than  that  of  wo- 
man’s civil  rights,  - — u woman’s  rights,77  - — a 
phrase  which  we  all  hate  ; which  soils  the  lips 
that  use  it ; which  women  speak  with  such 
unction  as  a slave  might  clank  his  chains ! 


THE  UNITED-STATES  LAW. 


143 


Soils  the  lips  ? Not  because  it  is  a phrase 
which  stirs  the  ridicule  and  the  contempt  of 
the  weak-minded  ; not  because  you  consider 
it  only  the  second  term  of  the  Bloomer  equa- 
tion : but  because  the  necessity  to  use  it  shows 
how  little  has  yet  been  done  ; shows  that  men 
still  dwell  on  distinctions  of  sex,  in  preference 
to  identities  of  duty ; that  women  are  play- 
things still  in  the  popular  estimate,  — crea- 
tures of  the  nursery  and  the  drawing-room, 
but  not  angels  of  God,  joint-heirs  of  immor- 
tality. 

We  have  not  laid  a secure  foundation  for 
any  statement  on  this  subject,  unless  we  have 
made  it  clear  that  “ woman’s  rights  ” are  iden- 
tical with  “ human  rights  ; ” that  what  men 
do  for  women,  they  do  in  far  wider  measure 
for  themselves  ; that  no  father,  brother,  or 
husband,  can  have  all  the  privileges  ordained 
for  him  of  God,  till  mother  and  sister  and  wife 
are  set  free  to  secure  them  according  to  in- 
stinctive individual  bias. 

The  subject  would  have  no  interest  for  me, 


144 


THE  UNITED-STATES  LAW. 


if  it  were  but  a selfish  clamor  of  one  class  for 
advantages  over  another ; but  it  does  interest 
me,  — interest  beyond  all  earthly  debate, — 
because,  in  its  evolution,  there  unfolds  also  the 
highest  interest  of  our  common  humanity. 

That  public  opinion  has  been  somewhat 
conquered,  the  reception  given  to  women  in 
the  lyceum  is  alone  sufficient  to  show.  When 
a woman  of  good  social  standing  struggles 
with  convention  on  the  one  hand,  and  womanly 
affection  on  the  other,  she  still  stands  on  the 
platform  somewhat  as  she  did  at  the  stake; 
but,  on  the  other  hand,  the  awakening  public 
interest  has  nurtured  a class  of  women,  who 
owe  all  that  they  have  and  are  to  the  plat- 
form itself. 

With  no  oppressive  restrictions  in  their 
circumstances,— endowed  with  strong  good 
sense  and  a vigorous  talent,  — they  have  won 
their  way  to  the  public  esteem  ; and  are 
stronger  and  healthier  than  most  women,  only 
because  they  have  had  an  object  for  life  and 
thought  to  grasp. 


THE  UNITED-STATES  LAW. 


145 


What  will  most  help  women  in  the  matter 
of  labor,  and,  through  labor,  to  their  “ civil 
rights/7  is  a new  conception  of  the  dignity  of 
labor  on  the  part  of  the  educated  classes,  men 
as  well  as  women. 

Harriet  Hosmer  comes  back  from  Rome  to 
queen  it  over  our  men ; Rosa  Bonheur  drives 
a tandem  of  Flemish  horses  through  a square 
of  canvas,  and  over  the  very  necks  of  her 
critics : but  we  want  women  who  shall  turn 
the  trades  into  fine  arts.  Do  you  smile  at  the 
expression  ? It  is  legitimate.  France  has 
already  answered  my  demand.  A finer  statue 
than  the  “Moses”  of  Michael  Angelo  would  be 
one  womanly  model  of  patient  thoroughness. 
A finer  picture  than  the  glowing  pencils  of 
Titian  and  Claude  ever  fused  into  a canvas 
would  be  the  prospective  elevation  of  manual 
labor. 

The  fine  arts  are  already  obedient  to  wo- 
man’s will.  To  what  woman  is  it  reserved  to 
make  the  useful  arts  pay  tribute  ? Dependent 
upon  the  “ right  to  labor/7  as  we  have  al- 
io 


146 


THE  UNITED-STATES  LAW. 


ready  seen,  is  “ woman’s  civil  equality.”  If 
all  the  fields  of  human  labor  are  thrown  abso- 
lutely open  (and  you  admit  that  they  ought  to 
be) ; if  women  enter  and  grow  wealthy  there- 
in ; if  every  second  woman,  for  instance,  were 
an  intelligent  property-holder,  — is  it  credible 
that  she,  or  her  husband  for  her,  would  remain 
contented  in  her  present  minority  ? Would 
she  not  want  a seat  in  the  legislature  to  pro- 
tect her  property,  a vote  to  control  appropria- 
tions and  taxes  ? There  are  no  revolutionists 
like  the  industrial  classes. 

It  was  the  discontent  of  merchants  and 
artisans  which  hunted  Charles  Stuart  to  the 
block,  and  paved  the  way  for  English  freedom. 
It  was  the  discontent  of  trade,  a long-enter- 
tained moral  disgust,  culminating  in  indignant 
contempt  at  a Stamp  Act,  which  secured 
American  independence , — I wish  we  could 
say,  American  freedom  as  well.  Create,  then, 
a class  of  wealthy  working  women,  you  who 
are  ambitious  of  a female  franchise,  and  society 
will  be  forced  to  give  you  your  desire. 


THE  UNITED-STATES  LAW. 


147 


Wendell  Phillips  says,  that,  when  woman  is 
once  brought  to  the  ballot-box,  men  will  cry 
out,  “ Educate  her  ! 77  in  self-preservation.  If 
this  be  true  (and  I am  not  sure  that  it  is ; for 
a great  many  popular  elections  are  at  this 
moment  carried  in  the  Middle  and  Southern 
States,  to  come  no  nearer  home,  by  the  ^edu- 
cated class,  partly  by  the  dram-shops  indeed), 
— if  this  be  true,  however,  it  is  a “ poor  rule 
which  does  not  work  both  ways ; 77  and  Tve 
may  go  farther  than  Mr.  Phillips,  and  say,  he 
will  also  cry  out,  u Give  her  something  to  do  ! 77 
that  she  may  understand  the  interests  of  pro- 
perty, and  be  qualified  to  plead  for  them.  Mr. 
Phillips  plants  himself  upon  the  right  of  suf- 
frage, and  goes  back  to  secure  education  and 
free  labor,  for  State  reasons.  He  has  every 
right  to  do  it ; but,  on  the  other  hand,  we  may 
rest  upon  our  undoubted  right  to  education, 
and  go  forward , with  safe,  strong  steps,  to 
claim  the  right  of  suffrage.  When  a majority 
of  women  find  the  means  of  thorough  educa- 
tion open,  then  a much  greater  number  will 


148 


THE  UNITED-STATES  LAW. 


seek  actual  employment,  and  immediately  the 
interests  of  property  will  compel  them  to 
clamor  for  suffrage.  Do  not  misunderstand 
me.  It  is  not  a nation  of  paid  underlings,  of 
ever  so  intelligent  clerks  and  apprentices, 
men  or  women,  that  will  control  the  springs 
of  government,  and  overthrow  institutions  as 
well  as  prejudices,  if  they  stand  in  their  way: 
it  is  the  heads  of  firms,  the  movers  in  great 
undertakings,  the  proprietors  of  mills,  the 
builders  of  ships,  the  contractors  for  supplies, 
persons  conversant  with  large  interests,  and 
quick  to  see  their  jeopardy,  which,  as  women 
no  less  than  men,  must  secure  the  elective 
right. 

How  I should  rejoice  to  see  a large  Lowell  • 
mill  wholly  owned  and  managed  by  women  ! 
What  is  to  make  it  possible  ? — only,  that  the 
unoccupied  women  of  wealth  and  rank,  at  this 
moment  in  the  Commonwealth,  should  combine 
to  build  or  buy  such  a mill.  Suppose  it  well 
managed,  representing  ultimately  a million  of 
dollars : do  you  believe  it  would  long  remain 


THE  UNITED-STATES  LAW. 


149 


without  political  power?  Just  as  the  testy 
trade  of  Upsal  demanded  the  franchise  for 
its  eighty-one  women,  so  would  the  Lowell 
mill. 

Every  year,  these  ten  years,  our  sturdy 
friend  Dr.  Hunt  has  sent  up  her  protest  to 
the  city  assessors.  She  has  not  quite  had  the 
heart,  as  I wish  some  woman  had,  to  let  them 
sell  her  household  gods  over  her  head,  for 
non-payment  of  taxes ; but  the  City  Govern- 
ment sits  as  serene  and  patient  under  her 
inflictions  as  if  she  had  never  spoken.  Her 
protests  probably  go  back  to  the  pulp  of  the 
paper-mill  ; and,  but  for  the  newspaper,  we 
should  never  know  that  they  were  written. 
But  five  thousand  female  property -holders, 
calling  their  own  caucus,  and  storming  the 
City  Hall  with  well-concerted  words,  would 
compel  any  government  to  listen  ; would  com- 
pel committees  to  sit,  and  departments  to  act. 
Let  it  be  your  first  duty,  then,  to  add  to  the 
number  of  intelligent  female  workers. 

Last  summer,  I heard  one  of  our  friends 


150 


THE  UNITED-STATES  LAW. 


say,  that  the  reason  that  men  were  not  willing 
that  women  should  enter  medical  societies, 
and  receive  medical  diplomas,  was,  that  they 
were  unwilling  to  be  detected  in  their  own 
double-dealing  and  malpractice.  I should  not 
be  willing  to  indorse  a statement  so  broadly 
made.  Mean  men  may  justify  it : but  the  men 
I have  known,  the  men  who  have  been  at 
once  my  inspiration  and  my  strength,  — these 
men  were  not  mean ; yet  among  them  even  the 
bravest  doubted,  at  first,  as  to  the  expediency 
of  our  discussion. 

These  men  have  felt  a tender  reverence  for 
moral  purity  in  woman.  They  have  seen  la- 
borers of  the  lower  class  fall  as  if  smitten  by 
a pestilence.  They  had  not  faith  to  save  the 
world  at  such  a cost.  From  the  malpractice 
and  guilty  dread  of  mean  men,  then,  from  the 
sensitive  horror  of  the  noblest,  let  us  learn,  at 
least,  that  the  duty  woman  owes  the  State  is 
a moral  duty.  A full  understanding  of  this 
will  give  her  courage  to  press  her  claims.  It 
is  the  power  of  conscience  and  love  which 


THE  UNITED-STATES  LAW. 


151 


she  is  to  bring  to  bear  on  the  ballot-box,  and 
which  is  to  mould,  with  her  aid,  questions 
and  interests  hitherto  untouched  by  any  higher 
impulse  than  the  love  of  gain. 

I cannot  leave  this  statement  of  human 
rights,  without  claiming  for  woman  one  right 
of  which  men  very  commonly  deprive  her ; in 
behalf  of  which  society  makes  no  clamor,  and 
about  which  the  most  radical  reformers  say 
very  little.  I mean,  woman’s  right  to  find 
man  in  his  proper  place,  as  counsellor  and 
friend. 

As  father , to  find  him  interested,  equally 
with  his  wife,  in  the  spiritual  custody  and 
training  of  his  daughters ; giving  thus  some 
portion  of  each  day  to  imbuing  young  wo- 
manly souls  with  manly  strength. 

As  brother,  to  find  in  him  wise  respect  for 
womanhood,  and  helpful  free  communion. 

As  husband,  to  find  him,  unless  there  is 
manifest  interposition  of  Providence,  always 
at  the  head  of  his  family,  always  the  support 
and  counsellor  of  his  wife,  as  she  in  turn  is 


152 


THE  UNITED-STATES  LAW. 


to  be  his ; making  his  love  her  shelter,  his 
strength  her  dependence,  his  experience  her 
guide,  his  manliness  the  complement  of  her 
womanliness. 

As  a son , to  find  him  always  anxious  and 
ready  to  minister,  provident  to  think,  patient 
to  bear,  and  willing  to  act ; never  shirking, 
from  idleness,  the  duty  which  an  active  mo- 
ther does  not  shrink  from  bending,  perhaps 
breaking , beneath. 

Society  sets  man  free  from  every  conceiva- 
ble family  duty,  without  a word.  On  the  other 
hand,  it  binds  women  down  to  them  with  cords 
of  iron,  and  is  pitiless  if  a single  one  be  snapped. 
I do  not  ask  society  to  require  less  of  woman, 
out  more  of  man.  There  is  an  immense  amount 
of  cant,  intentional  and  unintentional,  talked 
upon  this  subject.  Last  January,  I heard  one 
of  our  wisest  and  best  public  teachers  speak 
upon  the  constitution  of  the  family;  and,  when 
he  had  spoken  whole  pages  of  solid  sense, 
he  said  this  foolish  thing,  — that  the  life  of 
the  family  rested  in  the  mother ; that,  when 


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153  * 


she  died,  the  children  must  scatter,  the  father 
could  not  hold  them  alone,  but  that  the  fa- 
ther might  be  faithless  or  dissipated,  might 
abide  in  foreign  countries,  might  wander  for 
years  a stranger,  and  still  the  family  sacred- 
ness be  unbroken.  I do  not  believe  it.  I 
protest  against  such  a view  of  the  family,  as 
a great  public  evil,  and  one  which  no  public 
teacher  should  strengthen  by  any  heedless  or 
sentimental  words. 

No  man  has  a right  to  ask  any  woman  to  be 
his  wife,  who  means  to  sacrifice  her  life  to  his 
own  love  of  business  or  pleasure  or  vagrancy; 
who  does  not  mean  to  stand  strong  at  her  side 
till  death.  I speak  for  the  heart  of  all  wo- 
manhood when  I say,  that  no  good  woman 
would  ever  accept  such  an  offer,  if  she  sup- 
posed she  were  to  be  idly  left  to  fulfil  its 
duties  alone.  If  God  had  intended  to  rear 
women  independent  of  manly  influence,  he 
would  never  have  constituted  the  family.  It 
is  because  every  woman  needs  every  man 
that  its  laws  are  absolute.  If  the  physical 


154 


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legitimacy  of  the  family  depend  upon  the  mo- 
ther, the  spiritual  legitimacy  depends  upon 
the  holy  faithfulness  of  the  father.  When 
death  or  sickness  or  imperative  duty  takes  her 
beloved  ones  from  her,  God  sends  to  woman 
the  Comforter,  who  helps  her  to  bear  and  do 
her  double  duty.  Yet  even  this  angel  is  born 
of  a voiceless  sorrow.  It  was  in  recognition  of 
this  human  need,  as  much  as  of  the  divine 
love,  that  Theodore  Parker  was  accustomed 
to  pray  to  Him  who  is  both  Father  and  Mother. 

Do  you  object,  that,  under  the  present  con- 
stitution of  society,  man  cannot  find  time  for 
this  fidelity?  When  woman  becomes  an  ac- 
tive worker,  adding  to  the  resources  of  the 
household,  man  is  set  free  from  a portion  of 
his  care.  The  future  offers  him  ample  time  ; 
the  present,  more  than  he  uses.  I wish  I 
could  see  him  as  anxious  to  make  acquaint- 
ance with  his  own  young  children  as  with 
the  gay  society  of  his  neighborhood. 

The  actual  guardianship  of  society  is  now 
thrown  into  woman’s  hands.  It  does  not 


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155 


belong  to  her : it  belongs  to  men  and  wo- 
men* 

Individual  men  shrink  from  the  idea  of 
being  “governed  by  their  wives.”  From  tra- 


* This  passage  was  originally  prompted  by  some  reflections 
on  the  changes  which  have  occurred  in  domestic  life  in  Boston. 

Here  the  family,  even  among  those  of  the  highest  social  rank, 
had  once  a sacred  simplicity  pleasant  to  remember.  Men  were 
accustomed  to  take  their  three  meals  with  their  wives  and  chil- 
dren. The  latest  dinner-hour  was  two,  p.m.;  and  suppers  were 
unheard  of.  The  evening  party  began  at  seven ; and  young  girls 
went  freely  and  uninvited  from  house  to  house,  with  their  needle 
or  their  book. 

How  greatly  all  this  is  changed,  my  readers,  many  of  them, 
feel  still  more  deeply  than  I;  and,  with  this  change,  the  forma- 
tion of  “clubs”  of  various  kinds  has  brought  about  others  far 
more  important. 

A young  married  lady  of  rank  and  fashion  was  lately  lamenting 
to  me  the  isolation  of  husbands  and  wives,  fathers  and  children, 
consequent  upon  club-life. 

“ But,”  she  concluded  with  a sigh,  “if  my  husband  had  no 
club,  he  would. expect  a hot  supper  for  a friend  two  or  three 
times  a week;  and  how  could  I ever  accomplish  that?” 

This  indolence  of  women  lies  at  the  bottom  of  many  serious 
social  evils.  The  woman  who  will  not,  health  and  fortune  per- 
mitting, make  herself  responsible  in  such  a case  for  any  number 
of  hot  suppers,  deserves  to  see  her  own  happiness  wither,  her  own 
hearth  made  desolate. 

It  is  needless  to  add,  that  if  women  would  educate  them- 
selves to  be  true  and  noble  companions  to  their  husbands,  and 
resign  on  their  own  part  all  that  is  unsound,  and  therefore  unbe- 
coming in  fashionable  life,  hot  suppers  would  cease  to  be  a desi- 
deratum, and  men  would  pass  pleasant  evenings  without  them. 


156 


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ditional  indolence,  however,  and  that  senti- 
mental respect  which  does  not  permit  a man 
to  sit  in  a woman’s  presence,  the  “world  ” has 
certainly  come  to  be  governed  by  “ its  wife.” 
Worst  of  all,  nobody  punishes  it  even  by  a 
sneer. 

The  historical  development  of  woman’s  so- 
cial progress  corresponds  to  the  logical  state- 
ment upon  which  I have  insisted. 

Nearly  two  centuries  ago,  Mary  Astell 
would  have  established  a college  for  women  ; 
but  the  bigotry  of  Bishop  Burnet  defeated 
her  plans.  The  niece  of  a beneficed  clergy- 
man, she  had  not  the  courage  to  press  her 
schemes  against  the  open  opposition  of  the 
church.  Many  other  efforts,  like  hers,  to 
secure  and  make  use  of  education,  led  the 
way  to  a recognition  of  a decided  bias  in  the 
individual : so  when,  a century  later,  Mary 
Wollstonecraft  was  born,  the  way  was  open 
for  the  assertion  of  the  right  to  labor.  This 
assertion  is  hardly  indicated  in  her  most  cele- 
brated work ; but  it  gives  pungency  and  effect 
to  the  dreariest  pages  of  her  novels. 


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157 


In  Australia,  when  a female  child  is  born, 
the  natives  break  her  finger-joints  : an  arti- 
ficial distinction,  which  they  seem  to  think 
more  decisive  and  enduring  than  God’s  own 
limit  of  sex. 

Mary  Wollstonecraft  saw  that  civilized 
society,  enslaved  by  tradition  and  custom,  im- 
posed conditions  quite  as  arbitrary,  and,  to 
all  practical  purposes,  broke  every  joint  in  a 
woman’s  body ; leaving  her  helpless,  to  de- 
pend on  the  strength  and  skill  and  affection 
of  man. 

A passionate  and  thriftless  father,  who 
spent  more  than  three  daughters  could  earn, 
and  whom  she  nevertheless  protected  to  her 
dying  day,  did  not  give  her  a very  high  idea 
of  the  security  of  such  dependence.  The 
response  to  her  appeal  was  heard  in  a myriad 
of  distinguished  voices,  and  seen  in  the  con- 
secutive, chosen,  and  persevering  labors  of 
Harriet  Martineau  in  political  economy,  of 
Anna  Jameson  in  artistic  criticism,  of  Mary 
Carpenter  in  the  reformation  of  criminals, 


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of  Florence  Nightingale  in  sanitary  reform,  of 
Caroline  Chisholm  in  emigration,  of  Mrs.  Grif- 
fith in  marine  botany  (a  special  study,  which 
she  may  almost  be  said  to  have  created),  of 
Janet  Taylor  in  practical  philanthropy  among 
seamen,  and  nautical  astronomy. 

This  selection  of  duty  shows  the  advance 
of  the  movement.  Formerly  a woman  might 
be  literary  in  a general  sense  : now  she  had 
the  oversight  of  the  field,  and  might  choose  the 
place  and  kind  of  her  work. 

All  this  prepared  the  way  for  the  advent  of 
Margaret  Fuller,  and  brought  about  the  con- 
dition of  which  she  was  the  exponent.  She 
caught  the  rumor  which  floated  in  subtle  dis- 
cord all  around  her.  Her  quick  insight  de- 
tected every  true  and  living  germ  of  thought 
in  the  confused  social  deposits  and  exhala- 
tions. Out  of  the  discord,  she  wrought  a 
quaint  and  scholarly  music  ; out  of  the  refuse, 
she  enriched  a fragrant  garden  : and  this 
song,  this  outgrowth,  had  an  essential  music 
and  beauty,  and  were  caught  at  once  to  the 
popular  heart. 


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159 


That  the  division  of  labor  was  already 
taking  place,  was  obvious  enough  to  her : so 
she  claimed,  in  advance,  the  right  of  suffrage. 
Society  was  already  prepared  to  make  this 
claim,  but  only  discovered  its  readiness  as  it 
listened  to  her  enthusiastic  song.  Like  De- 
borah, our  friend  struck  her  cymbals  ; and, 
when  the  heart  of  the  people  shouted  consent, 
they  “ made  her  a judge  over  them/’ 

Although  it  was  doubtless  owing  to  many 
older  causes,  it  seemed  as  if  her  statement  of 
the  “ great  lawsuit”  in  1844  led  to  the  first 
Woman’s  Convention  at  Seneca  Falls  in  1848  ; 
and,  in  1850,  the  National  Woman’s-rights 
Association  began  the  yearly  work  in  which 
it  has  ever  since  persevered. 

Man,  as  well  as  woman,  has  been  forced  to 
respect  this  work,  moved  by  the  moral  des- 
titution in  the  lowest,  and  the  profane  inanity 
in  the  highest,  ranks  of  life,  which  is  the 
result  of  our  social  depravity. 

Profane  inanity , I repeat ; for  every  help- 
less woman  is  a living,  intolerable  blasphemy 


ICO 


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against  the  Most  High.  Not  more  a blasphe- 
my than  every  helpless  man  ; but  society 
neither  expects,  defends,  nor  provides  for, 
helpless  men . It  is  only  the  helpless  woman 
who  is  expected  and  approved. 

Often  do  we  hear  it  said,  that  no  law  forbids 
American  women  to  icork. 

Neither,  it  has  been  responded,  is  there 
any  law  which  forbids  Chinese  women  to  walk  ; 
but  the  careful  ligatures,  so  closely  pressed 
by  unsuspecting  mothers  about  those  tender 
feet,  do  not  do  their  work  more  surely  than 
the  inevitable  restrictions  of  society. 

In  summing  up  this  constantly  accruing  list 
of  influences  and  changes,  I must  again  direct 
your  attention  to  the  fact,  that,  from  the  earli- 
est dawn  of  modern  civilization,  women  have 
been,  in  some  nations  at  least,  invested  with 
political  power. 

The  mock-marriage,  by  which  the  woman’s 
entailed  suffrage  served  a fraudulent  purpose ; 
the  abbesses  called  to  Parliament  in  right  of 
abbey-lands,  the  permission  accorded  to  the 


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161 


eighty-one  women  of  Upsal,  the  position  of  the 
French  “ Dames  de  la  Halle,”  the  female  stock- 
holders in  the  East-India  Company,  that  one 
persistent  female  property- holder  in  Nova 
Scotia,  the  fifty-dollar  proclamation-money  in 
New  Jersey, — all  indicate  that  there  never 
lias  been,  and  never  will  be,  any  serious  dif- 
ficulty about  woman’s  voting  in  any  age  or 
any  country  where  the  right  to  vote  depends 
upon  the  possession  of  property,  and  where 
she  herself  professes  to  desire  it. 

Understand,  then,  that  the  abstract  right 
to  vote  is  not  the  question  for  you  to  con- 
sider: that  was  settled  some  hundreds  of 
years  ago. 

The  practical  question  for  American  men 
to  put  to  themselves  is,  whether  their  own 
democratic  experiment  is  a failure.  Will  you 
go  back  to  the  property  basis  for  your  own 
franchise  ? or  do  you  still  profess  to  believe 
that  man — as  man,  as  child  of  God  — has  a 
right  to  reign,  which  does  not  depend  upon 
broad  doubloons  or  broad  acres  ? And,  if  man 
11 


162 


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lias  this  right  upon  a simple  human  ground, 
how  can  you  deny  it  to  woman? 

Will  you  say  that  she  is  not  human,  — that 
she  has  no  soul  ? 

Even  Mahomet  did  better  than  that.  Some 
one  once  asked  him  if  the  marriage-tie  were 
immortal,  and  if  a husband  might  claim  his 
wife  in  the  next  world  : — 

u If  the  man  be  the  superior  being,”  he  replied, 
u he  can  claim  his  wife  or  not,  as  he  chooses  ; but, 
if  the  woman  be  the  superior,  the  decision  must 
rest  with  her.” 

And  what  Mahomet  thus  prophesied  of  the 
world  to  come  is  clearly  true  of  the  world 
that  is.  There  is  no  such  thing  as  cheating 
either  God  or  humanity. 

Let  him  who  aspires  to  rule  make  himself 
superior  in  understanding  and  moral  purpose, 
and  he  will  rule. 

No  possibilities,  visible  or  invisible,  need 
daunt  him ; but,  let  him  be  false  by  one  hair's 
breadth,  and  he  carries  his  doom  in  his  otvn 
bosom  as  certainly  as  the  flawed  crystal  at 
the  approach  of  frost. 


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163 


You  are,  then,  to  base  your  demand  for 
woman’s  civil  rights  upon  her  simple  huma- 
nity, — the  value  of  the  soul  itself. 

If  you  deny  this  foundation  for  her,  you 
deny  it  for  yourselves,  and  the  Declaration  of 
Independence  is  only  an  impertinent  pre- 
tence. 

It  may  not  be  easy  to  push  this  truth  home, 
and  force  your  friends  and  neighbors  to  con- 
sider it  ; but,  once  convinced  in  your  own 
minds,  you  cannot  escape  from  the  respon- 
sibility. 

Wendell  Phillips  once  told  us  of  an  old 
catechism,  printed,  I think,  at  Venice  in  1563, 
which  contained  the  following  question  and 
answer : — 

Q.  How  shall  I show  my  obedience  to  God  ? 

A.  By  never  doing  any  thing  which  is  disagree- 
able to  my  neighbor. 

Is  it  possible  that  this  catechism  is  still  in 
general  use  ? 

Fashionable  morality  is  of  so  loose  a sort, 
that  to  do  any  thing  disagreeable  to  one’s 


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neighbor  is  still,  in  the  estimation  of  most 
people,  the  unpardonable  sin.  People  who 
are  capable  of  hesitating  on  that  account  need 
not  be  greatly  anxious  about  their  responsi- 
bility. 

Oar  cause  does  not  need  them  ; resting, 
not  on  timid  self-deceivers,  but  on  immutable 
truth,  and  the  hallowed  recognition  of  woman 
herself. 

Society  still  cries,  like  King  John  in  the 
play,— 

“ If  not,  fill  up  the  measure  of  her  will; 

Yes,  in  some  measure,  satisfy  her  so, 

That  we  shall  stop  her  exclamation  ! ” 

And  woman,  serener  than  Constance,  may 
whisper  back, — 

“ Wherefore,  since  law  is  perfect  wrong, 

Why  should  the  law  forbid  my  tongue  to  cry?  ” 


THE  END. 


I 


L’ENYOI. 


Now  press  the  clarion  on  thy  woman’s  lip, 

(Love’s  holy  kiss  shall  still  keep  consecrate,) 

And  breathe  the  fine,  keen  breath  along  the  brass, 
And  blow  all  class-walls  level  as  Jericho’s 
Past  Jordan.  . . . The  world’s  old; 

But  the  old  world  waits  the  hour  to  be  renewed. 

Aurora  Leigh. 


Two  of  far  nobler  shape,  erect  and  tall,  — 

Godlike  erect,  with  native  honor  clad 
In  naked  majesty,  — seemed  lords  of  all: 

And  worthy  seemed ; for  in  their  looks  divine 
The  image  of  their  glorious  Maker  shone,  — 
Truth,  wisdom,  sanctitude  severe  and  pure; 
Whence  true  authority  in  men.” 

Milton. 


12 


f 


4 ' 


